Equality and Non-Discrimination under International Law: Volume II [1 ed.] 1409440702, 9781409440703

Table of contents :
Cover
Half Title
Title Page
Copyright Page
Contents
Acknowledgements
Series Preface
Introduction
PART I: CONCEPTS OF EQUALITY AND NON-DISCRIMINATION
1 Equality
1. THE PHILOSOPHICAL FOUNDATIONS OF EQUALITY
2. EQUALITY AND NON-DISCRIMINATION CONCEPTS IN HUMAN RIGHTS LAW
2.1 Equality as consistent treatment
2.2 Equality of opportunity
2.3 Equality of outcomes
2.4 Transformative equality
3. EQUALITY AS A STRUCTURAL PRINCIPLE OF INTERNATIONAL HUMAN RIGHTS LAW
3.1 Equality as a preambular objective
3.2 Equality serving an implicit descriptive function
3.3 Equality codification in the substantive articles of human rights treaties
4. THE SCOPE AND INTERPRETATION OF THE PRINCIPLE OF EQUALITY IN CONTEMPORARY INTERNATIONAL HUMAN RIGHTS LAW
4.1 The definition and scope of discrimination and equal treatment
4.2 Permitted measures to accelerate and achieve def acto equality
5. A RIGHT TO EQUALITY IN INTERNATIONAL HUMAN RIGHTS LAW?
6. CONCLUDING REMARKS
FURTHER READING
2 Equality and Nondiscrimination
Equality and Nondiscrimination as Fundamental Human Rights
Religion
Humanitarian Movements
The UN Charter
International Customary Law
The History of the Principal Articles
Positive and Negative Statement of the Same Principle
Equality
An Independent Right
Equality before the Law and Equal Protection of the Law
Equal Enjoyment of Enumerated Rights
Nondiscrimination
Discrimination versus Distinction
Affirmative Action
Discrimination by Private Individuals
Distinctions between Citizens and Aliens
Nondiscrimination in the Matter of Political Rights
Nondiscrimination in Religious Rights and Practices
Nondiscrimination in Education
Discrimination against Persons Born Out of Wedlock
The Rights of Noncitizens
Principles of Equality and Nondiscrimination m the Human Rights Committee
Conclusion
3 Equality and Non-Discrimination
SUMMARY
1 INTRODUCTION
2 THE MEANING OF EQUALITY AND NON-DISCRIMINATION
2.1 FORMAL EQUALITY
2.2 SUBSTANTIVE EQUALITY
3 EQUALITY AND NON-DISCRIMINATION IN INTERNATIONAL LAW
3.1 SOURCES
3.2 SCOPE: SUBORDINATE AND AUTONOMOUS NORMS
3.3 PROHIBITED GROUNDS OF DISTINCTION
4 DIRECT AND INDIRECT DISCRIMINATION
4.1 DIRECT DISCRIMINATION
4.2 INDIRECT DISCRIMINATION
4.3 DISCRIMINATORY INTENTION
5 JUSTIFIED AND UNJUSTIFIED DISTINCTIONS
5.1 THE JUSTIFICATION TEST
5.2 STANDARD OF REVIEW
5.3 EVIDENCE AND PROOF
6 POSITIVE ACTION
7 CONCLUSION
FURTHER READING
USEFUL WEBSITES
4 The Principle of Equality or Non-Discrimination in International Law
INTRODUCTION
(1) Structural Dimensions
(a) Autonomous or Subordinate
(b) Open-Ended or Self-Contained
(2) Discriminatory Intention
(3) Drawing the Line Between Justified and Unjustified Distinctions
(a) Identical Treatment
(b) Legitimacy of Ends and Proportionality of Means to Ends
( c) International Suspect Classifications
(4) AfTrrmative Action
(a) "Special Measures of Protection"
(i) Relationship between Non-Discrimination and "Special Measures of Protection"
(b) Are Either "Special Measures" or Positive State Action Mandatory?
(i) Special Measures
(ii) Positive State Action
CONCLUSION
5 Non-Discrimination and Equality
I. INTRODUCTION
II. THE CONCEPTS OF NON-DISCRIMINATION AND EQUALITY
III. EQUALITY IN THE COVENANT
A The Text of the Covenant
B The Approach of the Committee
IV. ARTICLE 2(2): NON-DISCRIMINATION
A Differential Treatment
B Purpose or Effect
C Grounds upon which Discrimination is Prohibited
D The Scope of the Non-Discrimination Provision
V. STATE OBLIGATIONS
A Immediate or Progressive Implementation?
B The Type of Action Required
C Affirmative and Protective Action
D Private Discrimination
VI. CONCLUSION
PART II: DEVELOPMENT OF INTERNATIONAL LEGAL STANDARDS
6 Colonies, Minorities, and Women's Rights
3.1 The Communist Push for Nondiscrimination
3.2 The Problem of the Colonies
3.3 Race, Color, National Origin, and Language
Race and Color
National Origin
Language
3.4 Political Opinion, Property, and Birth
Political or Other Opinion
Property, Birth, or Other Status
3.5 The Womens Lobby and Womens Rights
Notes
7 The Racial Convention
PRELIMINARY STEPS
ADOPTION BY THE GENERAL ASSEMBLY
THE STRUCTURE OF THE CONVENTION
RACIAL DISCRIMINATION AS SOCIAL PATHOLOGY
THE HAND OF PROVIDENCE
8 Becoming Human: The Origins and Development of Women's Human Rights
I. INTRODUCTION
II. EXECUTIVE SUMMARY
Ill. THE ORIGINS: DEFINING THE ISSUES
IV. THE DRIVE FOR EDUCATION AND INDEPENDENCE
V. WOLLSTONECRAFT AND THE RIGHTS OF WOMEN
VI. MARRIAGE AND CHILDREN
VII. THE CONTRIBUTION OF NINETEENTH-CENTURY WOMEN WRITERS
VIII. ORGANIZING FOR POLITICAL ACTION—FROM ANTI-SLAVERY TO WOMEN'S RIGHTS
IX. ORGANIZING INTERNATIONALLY
X. BIRTH CONTROL, FAMILY PLANNING, AND WOMEN'S HEALTH
XI. THE UNITED NATIONS AND ITS COMMISSION ON THE STATUS OF WOMEN
XII. A DECLARATION ON ELIMINATING DISCRIMINATION AGAINST WOMEN
XIII. THE WORLD WOMEN'S CONFERENCES
XIV. FROM DECLARATION TO CONVENTION TO WOMEN'S HUMAN RIGHTS TREATY
XV. WOMEN'S RIGHTS AS HUMAN RIGHTS
XVI. CONCLUSIONS
9 The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?
I. INTRODUCTION
II. AFFIRMATION: DISABILITY RIGHTS "AS HUMAN RIGHTS"
Ill. REFORMULATION: DISABILITY RIGHTS AS HUMAN RIGHTS "WITH A DIFFERENCE"
IV. EXTENSION: DISABILITY RIGHTS AS HUMAN RIGHTS "PLUS"
V. INNOVATION: DISABILITY RIGHTS AS (HUMAN) RIGHTS INHERENT TO PERSONS WITH DISABILITIES
VI. CONCLUSION
10 Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles
I. Introduction
2. Review of Law and Jurisprudence
A. Non Discrimination
B. Protection of Privacy Rights
C. The Ensuring of Other General Human Rights Protection to All, Regardless of Sexual Orientation of Gender Identity
3. Impact of the Law and Jurisprudence for the Protection of the Human Rights of People of Diverse Sexual Orientations and Gender Identities
4. The Yogyakarta Process
5. Assessment of Dissemination and Impact of the Principles
A. Reaction by States and other Actors within United Nations Fora
B. Other Responses by States to the Principles
C. Civil Society Responses
6. Conclusion
PART III: INTERPRETING AND APPLYING THE LAW
11 Prohibited Discrimination in International Human Rights Law
I. EQUALITY AND NON-DISCRIMINATION IN THE UN CHARTER AND CHARTER BODIES
II. GLOBAL AND REGIONAL HUMAN RIGHTS TREATIES
III. THE MEANING AND SCOPE OF PROHIBITED DISCRIMINATION
A. Distinctions, Exclusions, Restrictions or Preferences
B. With the Purpose or Effect of Nullifying or Impairing Guaranteed Rights
C. Based on Identification with a Specific Group
D. Arbitrary, Unreasonable, Disproportionate or Unjustified
IV. THE MEANING OF DISCRIMINATION
12 The CEDAW Committee and Violence against Women
1. Introduction: the Women's Convention
2. General Recommendation No. 19
3. Implementation of General Recommendation No. 19
4. Mainstreaming Violence against Women
Notes
13 Violence against Women as Sex Discrimination: Judging the Jurisprudence of the United Nations Human Rights Treaty Bodies
A. INTRODUCTION
B. THE U.N. HUMAN RIGHTS TREATY BODIES
C. FEMINIST CRITIQUES OF INTERNATIONAL HUMAN RIGHTS LAW AND THE EQUALITY GUARANTEES
D. EQUALITY AND NON-DISCRIMINATION ON THE BASIS OF SEX IN INTERNATIONAL LAW
1. U.N. Charter and the Universal Declaration of Human Rights
2. International human rights instruments
3. International jurisprudence
(a) Formal versus substantive equality
(b) Discrimination versus inequality
(c) Public and private discrimination
(d) Culture, custom and structural inequality
(e) Multiple discrimination
4. Equality law and the U.N. treaty bodies: interim findings
E. VIOLENCE AGAINST WOMEN AS SEX DISCRIMINATION
1. Violence against women = sex discrimination
2. Assessing the VA W=SD formula
(a) Benefits of the VA W=SD formula
(b) Concerns relating to the VA W=SD formula
F. CONCLUSION
14 A Critical Evaluation of International Human Rights Approaches to Racism
I. INTRODUCTION
II. THE SIGNIFICANCE OF THE LANGUAGE OF EQUALITY IN THE UNITED NATIONS CHARTER
III. THE CENTRALITY OF RACIAL DISCRIMINATION IN THE DEVELOPMENT OF INTERNATIONAL HUMAN RIGHTS LAW
(i) Racial Segregation in the United States
(ii) South Africa and Apartheid
(iii) The Pioneering Studies of the Sub-Commission on Prevention of Discrimination and Protection of Minorities
(iv) Standard Setting and Racial Discrimination
IV. THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
(i) The Definition of Racial Discrimination
(ii) The Scope of the Convention's Substantive Provisions
(a) Justified Distinctions: The Case of Non-nationals
(b) Equality in Fact: Special Measures and Affirmative Action Under the Convention
{c) Public and Private Reach of the Convention
(d) Governmental Interference in Private Conduct: Hate Speech
(e) Remedies for Victims of Racial Discrimination
(f) The Need to Address the Root Causes of Racism-Article 7
(iii) The Committee on the Elimination of Racial Discrimination
(a) Membership of the Committee
(b) Committee Procedures
(c) Overdue Reports
(d) General Recommendations
(e) Complaint Procedures
(f) Early Warning and Urgent Procedures
(g) Funding
V. THE SPECIAL RAPPORTEUR ON CONTEMPORARY FORMS OF RACISM, RACIAL DISCRIMINATION, XENOPHOBIA, AND RELATED INTOLERANCE
(i) Anti-Semitism and Islamophobia
(ii) Assessment
(a) Annual Reports
(b) Country Missions
(c) Cooperation with CERD and Other Bodies
VI. THE UN PROGRAMME OF DECADES AND WORLD CONFERENCES TO COMBAT RACISM AND RACIAL DISCRIMINATION
VII. CONCLUSIONS
15 The European Court of Justice and Anti-Discrimination Law: Some Reflections on the Experience of Gender Equality Jurisprudence for the Future Interpretation of the Racial Equality Directive
1. INTRODUCTION
2. THE GENERAL RELEVANCE OF THE EU GENDER 'EXPERIENCE'
3. 'RACIAL OR ETHNIC ORIGIN'
4. SCOPE
5. CONCEPTS OF DISCRIMINATION
5.1 Direct Discrimination
5.2 Indirect Discrimination
5.2.1 Disadvantageous impact
5.2.2 Objective justification
5.3 Harassment
6. EXCEPTIONS TO THE PRINCIPLE OF EQUALITY
6. 1 Genuine Occupational Qualifications
6.2 Positive Action
7. VICTIMISATION
8. ENFORCEMENT
9. CONCLUDING COMMENTS: EMERGING FROM THE PAST INFLUENCE OF GENDER EQUALITY
PART IV: NON-LEGAL MEASURES FOR ACHIEVING EQUALITY AND NON-DISCRIMINATION
16 Article 10
A. Introduction
I. Education as a Human Right: International and Regional Perspectives
B. Travaux Preparatoires
I. Article IO(a)
II. Article IO(b)
III. Article IO(c)
IV. Article IO(f)
V. Article IO(g)
VI. Article IO(h)
C. Issues oflnterpretation
I. Taking All Appropriate Measures
II. Equality
D. Equality in Context
I. Formal Equality
II. Moving Beyond Formal Equality
III. Substantive Equality
IV. Transformative Equality
V. Direct Discrimination
VI. Indirect Discrimination
VII. Temporary Special Measures (TSMs)
VIII. lntersectional Discrimination
E. States Parties' Obligations
I. The Nature of State Obligations
II. Implementation
III. Reservations
I. Article IO(a)
II. Article IO(b)
17 The Neglected Pillar: The "Teaching Tolerance" Provision of the International Convention on the Elimination of All Forms of Racial Discrimination
18 Using Culture to Achieve Equality
1. INTRODUCTION
2. CONTENT AND MEANING OF ARTICLE 5: INTRODUCTION
3. IMPLEMENTATION ON THE DOMESTIC LEVEL
3.1. APPROPRIATE MEASURES ACCORDING TO CEDAW
3.2. SOME COMMENTS ON CEDAW'S CONCLUDING OBSERVATIONS
4. THE TWO FACES OF CULTURE42
4.1. CULTURE AS A BARRIER
4.2. CULTURE AS AN INSTRUMENT OF CHANGE
4.3. RELEVANT ACTORS
5. CONCLUSION
Name Index

Citation preview

Equality and Non-Discrimination under International Law

The Library of Essays on International Human Rights Series Editor: Stephanie Farrior Titles in the Series: The Development of International Human Rights Law Volume I David Weissbrodt, Fionnuala D. Ni Aolain and Mary Rumsey Equality and Non-Discrimination under International Law Volume II Stephanie Farrior Challenges in International Human Rights Law Volume III Menno T Kamminga The United Nations System for Protecting Human Rights Volume IV Dinah L. Shelton Regional Human Rights Systems VolumeV Christina M. Cerna

Equality and Non-Discrimination under International Law Volume II

Edited by

Stephanie Farrior Vermont Law School, USA

First published 2015 by Ash gate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business

Copyright© Stephanie Farrior 2015. For copyright of individual articles please refer to the Acknowledgements. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.

British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library. The Library of Congress has cataloged the printed edition as follows: 2014955140 ISBN 13: 978-1-4094-4070-3 (hbk)

Contents Acknowledgements Series Preface Introduction PART I

2

3

4 5

vii ix xi

CONCEPTS OF EQUALITY AND NON-DISCRIMINATION

Jarlath Clifford (2013), 'Equality', in Dinah Shelton (ed.), The Oxford Handbook ofInternational Human Rights Law, Oxford: Oxford University Press, pp. 420-45. 3 B.G. Ramcharan (1981), 'Equality and Nondiscrimination', in Louis Henkin (ed.), The International Bill ofRights: The Covenant on Civil and Political Rights, New York: Columbia University Press, pp. 246-69. 29 Daniel Moeckli (2013), 'Equality and Non-Discrimination', in Daniel Moeckli, ,., .. ,,,.., __ ,,. Shah and Sandesh Sivakurnanrn International Human Rights Law, 53 2nd edition, Oxford: Oxford University Press, pp. 157-73. Anne F. Bayefsky (1990), 'The Principle of Equality or Non-Discrimination in International Law', Human Rights Law Journal, 11, pp. 1-34. 71 Matthew Craven (1995), 'Non-Discrimination and Equality', in The International Covenant on Economic, Social and Cultural Rights: A Perspective on Its Development, Oxford: Clarendon Press, pp. 153-93. 105

PART II

DEVELOPMENT OF INTERNATIONAL LEGAL STANDARDS

6

Johannes Morsink (1999), 'Colonies, Minorities, and Women's Rights', in The Universal Declaration of Human Rights: Origins, Drafting and Intent, Philadelphia: University of Pennsylvania Press, pp. 92-129. 7 Michael Banton (1996), 'The Racial Convention', in International Action against Racial Discrimination, Oxford: Clarendon Press, pp. 50-73. 8 Arvonne S. Fraser (1999), 'Becoming Human: The Origins and Development of Women's Human Rights', Human Rights Quarterly, 21, pp. 853-906. 9 Frederic Megret (2008), 'The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?', Human Rights Quarterly, 30, pp. 494-516. 10 Michael O'Flaherty and John Fisher (2008), 'Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles', Human Rights Law Review, 8, pp. 207-48.

149 191 215

269

293

vi

PART III

Equality and Non-Discrimination under International Law

INTERPRETING AND APPLYING THE LAW

11 Dinah Shelton (2009), 'Prohibited Discrimination in International Human Rights Law', in Aristotle Constantini des and Nikos Zaiko (eds), The Diversity of International Law: Essays in Honour of Professor Kalliopi K. Kou/a, Leiden/Boston: Martinus Nijhoff Publishers/Brill Academic, pp. 261-92. 337 12 Christine Chinkin (2010), 'The CEDA W Committee and Violence against Women', in Adriana Di Stefano (ed.), Gender Issues and International Legal Standards: Contemporary Perspectives, Catania: ed.it, pp. 3-22. 369 13 Alice Edwards (2008), 'Violence against Women as Sex Discrimination: Judging the Jurisprudence of the United Nations Human Rights Treaty Bodies', Texas Journal a/Women and the Law, 18, pp. 1-59. 389 14 Kevin Boyle and Anneliese Baldaccini (2001), 'A Critical Evaluation of International Human Rights Approaches to Racism', in Sandra Fredman (ed.), Discrimination and Human Rights: The Case ofRacism, Oxford: Oxford University Press, pp. 135-91. 449 15 Sejal Parmar (2004), 'The European Court of Justice and Anti-Discrimination Law: Some Reflections on the Experience of Gender Equality Jurisprudence for the Future Interpretation of the Racial Equality Directive', in Jan Niessen and Isabelle Chopin (eds), The Development ofLegal Instruments to Combat Racism in a Diverse Europe, Leiden: Martinus Nijhoff, pp. 131-54. 507

PART IV

NON-LEGAL MEASURES FOR ACHIEVING EQUALITY AND NON-DISCRIMINATION

16 Fareda Banda (2012), 'Article 10', in Marsha Freeman, Christine Chink.in and Beatte Rudolf(eds), The UN Convention on the Elimination ofAll Forms of Discrimination against Women: A Commentary, Oxford: Oxford University Press, pp. 253-78. 17 Stephanie Farrior (1999), 'The Neglected Pillar: The "Teaching Tolerance" Provision of the International Convention on the Elimination of All Forms of Racial Discrimination', ILSA Journal ofInternational & Comparative Law, 5, pp. 291-99. 18 Ingrid Westendorp (2012), 'Using Culture to Achieve Equality', in Ingrid Westendorp (ed.), The Women's Convention Turned 30: Achievements, Setbacks, and Prospects, Mortsel, Belgium: Intersentia NV, pp. 111-31.

Name Index

533

559

569 591

Acknowledgements Ashgate would like to thank the researchers and the contributing authors who provided copies, along with the following for their permission to reprint copyright material. Brill for the essays: Dinah Shelton (2009), 'Prohibited Discrimination in International Human Rights Law', in Aristotle Constantinides and Nikos Zaiko (eds), The Diversity ofInternational Law: Essays in Honour of Professor Kalliopi K. Kou/a, Leiden/Boston: Martinus Nijhoff Publishers/Brill Academic, pp. 261-92. Copyright © 2009 Koninklijke Brill NV, Leiden; Sejal Parmar (2004), 'The European Court of Justice and Anti-Discrimination Law: Some Reflections on the Experience of Gender Equality Jurisprudence for the Future Interpretation of the Racial Equality Directive', in Jan Niessen and Isabelle Chopin (eds), The Development of Legal Instruments to Combat Racism in a Diverse Europe, Leiden: Martinus Nijhoff, pp. 131-54. Copyright© 2004 Koninklijke Brill NV, Leiden. Editpress for the essay: Christine Chinkin (2010), 'The CEDAW Committee and Violence against Women', in Adriana Di Stefano (ed.), Gender Issues and International Legal Standards: Contemporary Perspectives, Catania: ed.it, pp. 3-22. Alice Edwards for the essay: Alice Edwards (2008), 'Violence against Women as Sex Discrimination: Judging the Jurisprudence of the United Nations Human Rights Treaty Bodies', Texas Journal of Women and the Law, 18, pp. 1-59. Copyright© 2008 Alice Edwards. The family of Louis Henkin for the essay: B.G. Ramcharan (1981), 'Equality and Nondiscrimination', in Louis Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights, New York: Columbia University Press, pp. 246-69. Johns Hopkins University Press for the essays: Arvonne S. Fraser (1999), 'Becoming Human: The Origins and Development of Women's Human Rights', Human Rights Quarterly, 21, pp. 853-906. Copyright © 1999 Johns Hopkins University Press; Frederic Megret (2008), 'The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?', Human Rights Quarterly, 30, pp. 494-516. Copyright© 2008 Johns Hopkins University Press. lntersentia for the essay: Ingrid Westendorp (2012), 'Using Culture to Achieve Equality', in Ingrid Westendorp (ed.), The Womens Convention Turned 30: Achievements, Setbacks, and Prospects, Mortsel, Belgium: lntersentia NV, pp. 111-31. N.P. Engel Verlag for the essay: Anne F. Bayefsky (1990), 'The Principle of Equality or NonDiscrimination in International Law', Human Rights Law Journal, 11, pp. 1-34.

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Equality and Non-Discrimination under International Law

Oxford University Press for the essays: Jarlath Clifford (2013), 'Equality', in Dinah Shelton (ed.), The Oxford Handbook of International Human Rights Law, Oxford: Oxford University Press, pp. 420--45. Copyright© 2013 Jarlath Clifford. By permission of Oxford University Press; Matthew Craven (1995), 'Non-Discrimination and Equality', in The International Covenant on Economic, Social and Cultural Rights: A Perspective on Its Development, Oxford: Clarendon Press, pp. 153-93. Copyright© 1995 Matthew Craven. By permission of Oxford University Press; Daniel Moeckli (2013), 'Equality and Non-Discrimination', in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law, 2nd edition, Oxford: Oxford University Press, pp. 157-73. By permission of Oxford University Press; Michael Banton (1996), 'The Racial Convention', in International Action against Racial Discrimination, Oxford: Clarendon Press, pp. 50-73. Copyright © 1996 Michael Banton. By permission of Oxford University Press; Michael O'Flaherty and John Fisher (2008), 'Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles', Human Rights Law Review, 8, pp. 207--48. Copyright © 2008 the authors; Kevin Boyle and Anneliese Baldaccini (2001 ), 'A Critical Evaluation of International Human Rights Approaches to Racism', in Sandra Fredman (ed.), Discrimination and Human Rights: The Case of Racism, Oxford: Oxford University Press, pp. 135-91. By permission of Oxford University Press; Fareda Banda (2012), 'Article 10', in Marsha Freeman, Christine Chinkin and Beatte Rudolf (eds), The UN Convention on the Elimination ofAll Forms of Discrimination against Women: A Commentary, Oxford: Oxford University Press, pp. 253-78. By permission of Oxford University Press. University of Pennsylvania Press for the essay: Johannes Morsink (1999), 'Colonies, Minorities, and Women's Rights', in The Universal Declaration of Human Rights: Origins, Drafting and Intent, Philadelphia: University of Pennsylvania Press, pp. 92-129. Copyright © 1999 Johannes Morsink. Every effort has been made to trace all the copyright holders, but ifany have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity.

Publisher's Note The material in this volume has been reproduced using the facsimile method. This means we can retain the original pagination to facilitate easy and correct citation of the original essays. It also explains the variety of typefaces, page layouts and numbering.

Series Preface The Library of Essays on International Human Rights provides access, in a single series, to some of the most important and influential journal articles and papers on the subject. Selections include broad overviews of key areas in international human rights law, critical assessments ofthis law and of human rights institutions and inquiries into areas ofcontestation. Some are classic works in the field; others are more recent works that provide insight into important developments or debates. The series comprises five volumes. A volume on the development of international human rights law covers both the historical and philosophical development of human rights law as well as major issues during this development. A volume on challenges of human rights law presents works not only on issues of non-state actors, transitional justice and terrorism, but also articles on a human rights approach to public health, severe poverty as a human rights violation, investment arbitration as a venue of human rights challenges and climate change. The subject of equality and non-discrimination under international law merited its own volume, as the principles of equality and non-discrimination lie at the heart of human rights law. They are the only human rights explicitly included in the UN Charter, and they appear in virtually every major human rights instrument. The volume on the United Nations system for protecting human rights presents leading articles on the UN bodies specially created to promote and monitor the implementation of human rights, but it also goes beyond those entities to present articles on the human rights work of UN specialized agencies such as the World Health Organization, the International Labour Organization, UNICEF and UNESCO. Finally, the volume on regional systems for protecting human rights provides selections on the regional human rights instruments and on institutions and their jurisprudence, procedures, activities and effectiveness. Each volume opens with an introductory essay providing an overview of the topic covered and discussing the significance and context of the works selected. It is my hope that this series will serve as a valuable research resource for those already well-versed in the subject as well as those new to the field. STEPHANIE FARRIOR Vermont Law School, USA Series Editor

Introduction 'The claim to equality before the law is in a substantial sense the most fundamental of the rights of man,' wrote Sir Hersch Lauterpacht. 'It is the starting point of all other liberties.' (Lauterpacht, 1945, p. 115)

The principles of equality and non-discrimination lie at the heart of international human rights law. They are the only human rights explicitly included in the UN Charter, and they appear at the beginning of virtually every major human rights instrument. Prejudice is often the motivation underlying other rights violations, so measures that protect against manifestations of that prejudice serve to protect a broad array of human rights. This volume contains works by leading authors on the subject of equality and nondiscrimination under international law. The selections explore theories of equality, the issue of formal versus substantive equality, structural and institutional inequality and perspectives on how to determine when difference in treatment is permissible or impermissible under international law. The selections examine what grounds of discrimination are prohibited and why, and the intersection of multiple grounds of discrimination. In addition, they address approaches to determining what special measures, also known as affirmative action, are allowed or even required under human rights law. Issues of state responsibility for discrimination by non-state actors are also examined, as are legal requirements to use non-legal measures to address discrimination, such as governmental programmes to address root causes of the prejudice that leads to discrimination. In this volume, readers will find the drafting history of human rights treaty provisions on equality and non-discrimination, and incisive critiques of how UN and regional human rights bodies have interpreted and applied these provisions. Non-treaty instruments that have influenced international law and practice are also discussed. The essays contained in this volume are grouped into four parts. The first presents works that explore theoretical concepts of equality and non-discrimination. The next addresses the development of international legal standards on the subject. The third presents essays analysing how those standards have been interpreted and applied by UN and regional human rights bodies, and the last contains works on what measures besides legal action states are to take in order to achieve equality and non-discrimination. The theory of non-discrimination and equality articulated by Judge Tanaka in his historic dissent in the South West Africa cases 1 pervades today's international law on the subject. This influential text is not included in this volume because of its length and because it is so widely available on-line and in multiple books; readers interested in this field are encouraged to read the text in full. Writing that 'freedom can exist only under the premise of the equality South West Africa (Second Phase), [1966] ICJ Reports, Advisory Opinions and Orders, Judgment of 18 July 1966, Dissenting Opinion by Judge Tanaka. The claims were brought before the International Court of Justice (ICJ) by Ethiopia and Liberia against the apartheid regime of South Africa regarding its governance of South-West Africa (later Namibia). Judge Tanaka's famed dissent argued against the ICJ decision to dismiss the claims on the ground that the applicant states had no legal ground to bring them.

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principle', Judge Tanaka asked: 'What is the content of this principle?' He answered with a detailed exploration of Aristotle's famed maxim that 'what is equal is to be treated equally and what is different is to be treated differently, namely proportionately to the factual difference' (p. 305). The equality principle, Judge Tanaka explained, does not exclude the different treatment of persons from the consideration of the differences of factual circumstances such as sex, age, language, religion, economic condition, education, etc. To treat different matters equally in a mechanical way would be as unjust as to treat equal matters differently. (ibid.)

As articulated by Bertie Ramcharan in 'Equality and Nondiscrimination', included in Part I of this volume (Chapter 2), 'equal treatment for unequals is itself a form of inequality' (p. 35). In fact, Judge Tanaka wrote, '[t]o treat unequal matters differently according to their inequality is not only permitted but also required'(Tanaka dissent, p. 306). The principle of equality thus requires not only the equal treatment of equals, but also consideration of differences in assessing whether different treatment is just and is geared to achieving de facto equality, not just formal equality. This is the very approach taken in international human rights law. Essays contained in this volume explore just how this principle has been applied in practice by international and regional human rights bodies. Another well-established norm in international law is that discrimination need not be intentional or in bad faith for it to be unjust and unreasonable. Judge Tanaka propounded this principle in response to South Africa's argument that its policy of apartheid was needed in order to promote the well-being and social progress of the inhabitants of South-West Africa (now Namibia), which it governed. Judge Tanaka declared: 'the unreasonableness and injustice do not depend upon the intention or motive of [South Africa], namely its malafides'(p. 314). The importance of this principle cannot be emphasized enough. Written into human rights treaties and applied by human rights courts and treaty bodies, this rule recognizes that just because the discriminatory deprivation of human rights one is experiencing is unintentional, that does not diminish the existence and experience of discrimination. Examples of the application of this principle are provided in essays in this volume. The extent to which the rights to equality and non-discrimination are held by non-citizens is also examined in several of the selections in this volume. Significantly, the rights in the Universal Declaration of Human Rights belong to 'everyone' or 'all persons', and the same holds true for rights in human rights treaties, with the exception of a few rights explicitly limited to citizens, such as the right to vote or to enter one's country. Though some treaty clauses permit states to draw distinctions between citizens and non-citizens (for example, Article 2 of the Racial Discrimination Convention, 1965), the treaty monitoring bodies have made it clear that any differentiation must be for a legitimate purpose and not because of prejudice against foreigners. International human rights law regarding the rights of noncitizens is addressed in detail in the studies and reports by David Weissbrodt for the UN SubCommission on the Promotion and Protection of Human Rights,2 work that he later developed into his impressive book on the subject (Weissbrodt, 2008). David Weissbrodt, Final Report on the Rights of Non-Citizens, UN Doc. E/CN.4/Sub.2/2003/23 (2003), and his earlier studies and reports cited therein.

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John Humphrey, who prepared the first draft of the Universal Declaration of Human Rights, wrote that non-discrimination, like human rights, runs through the UN Charter like 'a golden thread' (quoted in Shelton, 2009, p. 264, n. 8). Indeed, Hernan Santa Cruz once remarked that the 'United Nations Organization had been founded principally to combat discrimination in the world' .3 The international law on discrimination and equality that has developed since the adoption of the UN Charter is explored in the selections in this volume.

Concepts of Equality and Non-Discrimination Jarlath Clifford's 'Equality' (Chapter 1) begins with an examination of the philosophical foundations of equality. His informative discussion moves from Aristotle's famed maxim that like cases should be treated alike, to Aquinas, Hobbes and natural law theory, Nozick, and on to equality as a necessary component of Rawls's justice equation, Amartya Sen's approach in his 1979 lecture 'Equality of What' and Ronald Dworkin. Next, he outlines concepts of equality and non-discrimination in international human rights law. Clifford suggests that several different conceptions of equality exist that apply in different contexts: 'Claiming a violation of the rights to non-discrimination or equality before the law thus often triggers an evaluation of one or more conceptions of equality' (p. 9), and sometimes requires examination of overlapping conceptions of equality. He identifies and discusses four: equality as consistent treatment; equality of opportunity; equality of outcomes; and transformative equality. In his next part examining equality as a structural principle of international human rights law, Clifford addresses the definition, scope and interpretation of the principles of equality and non-discrimination, presenting examples from the human rights treaty monitoring bodies' annual reports and jurisprudence. He also explores the contours of what measures are permissible to counter de facto inequality, including special measures/affirmative action. On the importance of recognizing the right to equality, Clifford observes that '[i]nequality is often the seed of long-term, systematic human rights violations. Social, economic, and political inequality is a feeding ground for mistrust, anger, hatred, exclusion, and violence that cultivates prejudice, separation, and stigma' (p. 26). Clifford's analysis demonstrates how the principle of equality 'is instrumental in reinforcing other fundamental human rights principles' (p. 27). Bertrand Ramcharan 's 'Equality and Nondiscrimination' (Chapter 2) is a valuable resource on the equality and non-discrimination provisions of the International Covenant on Civil and Political Rights. Ramcharan enriches our understanding of the content and meaning of these provisions by weaving their drafting history into his discussion. Opening his essay with the pronouncement that '[e]quality and nondiscrimination constitute the dominant single theme of the Covenant' (p. 29), he analyses the non-discrimination provisions in the Covenant, and examines equality as a right in and of itself, independent of the other enumerated rights.

UN Doc. A/C.3/ SR.100 (12 October 1948). Available in the travaux preparatoires of the Universal Declaration of Human Rights, at: http://www.un.org/depts/dhl/udhr/docs_l948_3rd_3c_ ga.shtml. He followed that remark, however, by a reference to ' [c]ertain Latin American countries where discrimination was unknown'. The notion among some UN delegates that discrimination was limited to such countries as South Africa and the United States was widespread for decades to come.

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Ramcharan's examination of the travaux preparatoires of the Covenant shows that the drafters aimed to address both dejure and defacto equality. A1iicle 26 on equality before the law and equal protection of the law, Ramcharan explains, 'was intended to ensure equality, not identity of treatment, and would not preclude reasonable differentiations between individuals or groups of individuals on grounds that were relevant and material' (p. 37). In addition, the travmo; show the drafters' goal of protecting not only against discrimination on the grounds listed in the Article 2 non-discrimination clause, but also freedom from discrimination more broadly. Article 3 of the Covenant ensuring equality between men and women was not added until the final stages of drafting, in the General Assembly. Significantly, Ramcharan observes, the provision is not phrased as a prohibition of discrimination. but 'as an affirmation of the entitlement of women as well as men to human rights generally' (p. 35). The notion that positive measures in favour of disadvantaged groups (affirmative action) does not constitute prohibited discrimination was accepted during the drafting of both covenants. As one delegate stated during the drafting, 'special measures ... were essential for the achievement of true social equality', as these 'were in fact protective measures'. The delegate 'thought it essential to make it clear that such protective measures would not be construed as discriminatory within the meaning of the paragraph' (p. 43). The United Kingdom and the United States were among the states that expressly supported this position. Ramcharan also discusses the state obligation to address discrimination by private individuals, non-discrimination in various fields such as education and the political sphere and the fact that with very few exceptions, 'the rights recognized by the Covenant are human rights, not merely citizens' rights' (p. 46). Anothervaluableresource is Daniel Moeckli's 'Equality and Non-Discrimination' (Chapter which begins with an insightful discussion of concepts of equality and non-discrimination and how they can be interpreted. His overview of the nom1s of equality and non-discrimination in international law is illustrated with numerous examples of their interpretation and application by UN and regional human rights bodies. He also explains the concepts of direct and indirect discrimination and explores the requirements for justifying difference in treatment. The basic test is that difference of treatment must be reasonable and objective. such that the aim is to achieve a purpose that is legitimate and not grounded in prejudice, and the means used are proportionate to the aim. A range of factors might be used in assessing proportionality, including whether the disadvantage experienced by the affected people is excessive in relation to the aim. Moeckli provides examples of purposes that have been deemed insufficient to justify difference in treatment, including administrative convenience, long-standing tradition, prevailing views in society and the convictions of the local population. As Moeckli notes, disproportionate impact in some situations may be difficult to prove. A European Court of Human Rights case he cites illustrates the 'decisive importance· (p. 66) that statistical evidence may have on the outcome of an indirect discrimination case. Moeck Ii points out that often, the data needed to establish a discriminatory effect can often only be collected by the state. Thus, he notes, the UN treaty bodies emphasize to states their duty to collect relevant statistical data, disaggregated by the various grounds articulated in nondiscrimination provisions. Finally, Moeckli examines the positive obligation of states to ensure equality and their duty to take action to ensure the enjoyment of this right, rather than simply prohibiting individual acts of discrimination. The latter approach

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is severely limited in that it focuses on discrimination understood as individual, isolated events that can be remedied through penalizing the perpetrators and compensating the victims. In fact discrimination is often the consequence of deeply embedded patterns of disadvantage and exclusion that can only be addressed through changes to social and institutional structures. (p. 66)

Thus, states have an obligation to take 'proactive steps to eliminate structural patterns of disadvantage and to further social inclusion' (p. 66). In her informative essay 'The Principle of Equality or Non-Discrimination in International Law', Anne F. Bayefsky (Chapter 4) analyses how this principle has been approached and applied by human rights treaty bodies and the European Court of Human Rights. She critically examines how these institutions have addressed the issue of discriminatory intent and discriminatory effect, justified and unjustified distinctions in treatment and when special measures are deemed consistent with the requirement of non-discrimination. Her overview and critique of the jurisprudence of these bodies reveals inconsistencies in their approach, most often when it comes to cases of discrimination against women. One lesson to be drawn from her analysis is that although the human rights bodies have pronounced certain standards regarding equality and non-discrimination, they have not necessarily applied them. Matthew Craven includes a detailed and informative essay, 'Non-Discrimination and Equality' (Chapter 5), in his book on the International Covenant on Economic, Social and Cultural Rights. After discussing various concepts ofnon-discrimination and equality, Craven directly addresses the issue of what equality means when it comes to economic, social and cultural rights. He explains that the drafters of the Covenant did not intend the treaty to require equal distribution of material benefits to all. Instead, the Covenant sets out a 'process of equalization in which social resources are redistributed to provide for the satisfaction of the basic rights of every member of society' (p. 110). Equality of opportunity is the objective, and 'an uneven distribution of material benefits is only tolerable in so far as the satisfaction of the basic economic, social, and cultural rights of every member of society is already achieved' (p. 110). However, as he points out, 'statistical evidence of "results" will be used as a measure of equality of opportunity, if only to ensure the effectiveness of any action taken' (p. 113). Craven includes numerous examples from the ESC Committee's review of state reports in his overview of the committee's interpretation and application of the Covenant's equality and non-discrimination provisions. Issues addressed include what constitutes impermissible and permissible differential treatment under the Covenant, how to determine discriminatory effect and the grounds on which discrimination is prohibited. One important question that arises is whether and on what grounds discrimination on the basis of nationality is permitted. Craven points out that Article 2 of the Covenant prohibits discrimination on the ground of 'national origin', but not nationality. Some have interpreted 'national origin' to include non-nationals, whereas others have not. This part of his essay discusses the approach of various ESC Committee members to this question in such areas as housing, employment and social security. Craven emphasizes that in examining any difference in treatment of non-nationals, the Committee must be sure to assess whether the state decision is motivated by true economic reasons, or prejudice. Indeed, the Committee has been critical of state policy or action when it appears that foreigners were penalized simply for being foreign rather than because of any real threat to national interests.

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It should be emphasized that when it comes to the question of 'progressive implementation' of state obligations under the Covenant, 4 the prohibition of discrimination is an obligation of immediate effect, not one to be dribbled out progressively over time. Additional parts of Craven's essay explore the types of state action required to achieve equality and nondiscrimination, issues of affirmative and protective action, and the important question of the state obligation to protect against discrimination by private individuals.

Development of International Legal Standards The drafting history of the equality and non-discrimination prov1s10ns of the Universal Declaration of Human Rights (UDHR) is a fascinating one. Johannes Morsink relates this history in intriguing detail in 'Colonies, Minorities, and Women's Rights' (Chapter 6). Why, for example, include both 'race' and 'colour' in the non-discrimination clause? Morsink recounts the story that led to both terms being included. As for 'national origin' in the non-discrimination clause, it was introduced with the understanding that it did not refer to citizenship, but rather, 'national characteristics'. The discussion of prohibiting discrimination on the basis of' language' centred on the desire of members of linguistic minority groups to see their language rights protected, particularly in education, religion and courts. A minority language provision was proposed for what became Articles 10 and 1I of the UDHR, in order to ensure full equality in a court and a fair trial, but ultimately the provisions were not adopted. 'Political opinion' in the list of prohibited grounds of discrimination has what Morsink describes as an 'in-and-then-out kind of history' (p. 166) which he relates in detail, showing the Soviets energetically attempting at every tum to remove that category from the list. The prohibition of discrimination on the basis of 'property status' was aimed at ensuring that everyone have the same rights, whether rich or poor. Morsink's research shows that the prohibition of discrimination on the basis of 'birth status' was aimed at addressing inherited social and economic privilege, and was meant to cover such categories as social conditions, social status, caste and class. Were the rights proclaimed in the Universal Declaration held by 'all men', or 'all human beings'? Article 1 of the Universal Declaration begins: 'All human beings are born free and equal in dignity and rights.' The original drafts, however, began with the phrase 'All men', and Eleanor Roosevelt herself did not support changing it, stating that 'it had become customary to say "mankind" and mean both men and women' (p. I 75). It was only when the draft came before the Third Committee that the opening Article began 'All human beings'. In addition, the first drafts of the Preamble of the Universal Declaration reiterated all the UN Charter's preambular clauses on equality and rights but one: the Charter's reaffirmation of the 'equal rights of men and women'. Morsink conveys the arguments made against omitting this clause from the Declaration. Ultimately, the Third Committee voted 32-2 for the UDHR's preamble to include reference to the Charter's reaffirmation of the 'equal rights of men and women'. The two states that voted against including it: China and the United States. Morsink also recounts the discussions around the drafting of the UDHR provisions on equal marriage rights, voting rights, equal access to public service and the right to equal pay In Article 2 of the ESC Covenant, each state party 'undertakes to take steps ... with a view to achieving progressively the full realization of the rights recognized' in the Covenant.

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for equal work, as well as the two provisions that contain an explicit gender bias, the phrase 'himself and his family' (Article 23 on just remuneration for work, and Article 25 on an adequate standard of living). The drafting of the International Convention on the Elimination of All Forms of Racial Discrimination is related by Michael Banton, a member for 15 years of CERD, the committee that monitors the treaty, in his book International Action against Racial Discrimination. Banton places his essay 'The Racial Convention' (Chapter 7) in the context of other action that had been taken to address racial discrimination by such bodies as the United Nations Educational, Scientific and Cultural Organization (UNESCO), the International Labour Organization and the UN Security Council. A social scientist, Banton brings his discipline to bear in his discussion of the drafting history. Banton points out that the drafting of the CERD Convention was influenced by a 1949 UN Secretary-General memorandum stressing that the prevention of discrimination must be based, among other things, on the knowledge of actual social conditions. Knowledge of these conditions was needed in order to determine steps to be taken through legal action, administrative action and long-term educational programmes. Although both the UN Charter and the UDHR make reference to distinctions on the basis of race, the CERD Convention was the first to provide a definition of discrimination. Banton relates the debates over how to define racial discrimination in the Convention, and discusses the treaty's prohibition of not just intentional discrimination, but also that which has the discriminatory effect of impairing rights. 'Racial prejudice may be a motivation without being an intention', he notes, and some actions are motivated by prejudice of which one is not necessarily conscious (p. 206). The treaty aims at eradicating discrimination whether intentional or not. In her informative essay 'Becoming Human: The Origins and Development of Women's Human Rights (Chapter 8), Arvonne S. Fraser presents the evolution of thought and activism in the West in the struggle for women's equality. Tracing this history from Christine de Pizan 's Le Livre de la Cite des Dames in 1405 to modern times, Fraser recounts women's organizing internationally from the late 1880s, the issues they took on and the treaties and other international instruments they helped develop. Her account is replete with telling details 5 as she relates activity at the UN and other international organizations, and the progression of ideas and theories put forward. Forty years after adoption of the two covenants, the United Nations adopted the UN Convention on the Rights of Persons with Disabilities. In 'The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?', Frederic Megret (Chapter 9) provides a cogent analysis of the treaty and suggests that 'the argument can be made that the Convention comes close to creating new rights, or at least very new ways of seeing common rights' (p. 269).

Of the 1980 UN World Conference on Women, for example: 'Males headed virtually every government delegation, even in the preparatory conferences. Interested primarily in the political issues and protecting their country's point of view, they left their chairs to female delegation members unless a political issue was on the agenda; then the blue suits, white shirts, and ties would emerge en masse into the meeting hall. Women would turn around and look at each other knowingly as they relinquished their seats. Finally, in one preparatory meeting when the men emerged from the outer hall, a swell of spontaneous laughter greeted them' (p. 260).

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An influence on the development of international law comes not only from treaties but also from non-treaty sources such as soft law and similar instruments. In their essay 'Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles' (Chapter 10), Michael O'Flaherty and John Fisher discuss the grave and widespread human rights violations that led a group of human rights experts to develop the Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity (the Yogyakarta Principles). O'Flaherty, then a member of the UN Human Rights Committee, was Rapporteur for the development of the Yogyakarta Principles; Fisher, co-director of ARC International, an NGO based in Geneva that works within the UN system to advance the human rights of lesbian, gay, bisexual, transgender/ transexual and intersex (LGBTI) people, was also active in developing the Principles. Their essay reviews the growing international law and practice regarding the human rights of people of diverse sexual orientations and gender identities. They describe the practice of the UN human rights treaty bodies, the European Court of Human Rights and the UN Special Procedures regarding the non-discrimination principle as it applies to sexual orientation, and provide numerous specific examples. The authors relate the process used to develop and adopt the Yogyakarta Principles, and provide an assessment of the impact of the Principles in state practice and UN fora. The authors take note of what they call the imperfections of the Principles, but say the instrument should be understood as a work-in-progress.

Interpreting and Applying the Law Following the part in this volume on the development of international legal standards on equality and non-discrimination is a part on the interpretation of those standards and their application in practice. Dinah Shelton's informative essay 'Prohibited Discrimination in International Human Rights Law' (Chapter 11) is an astute overview of how the prohibition of discrimination is interpreted and applied in international human rights law. Shelton provides an insightful examination and critique of the jurisprudence of international tribunals and of the UN and regional monitoring bodies, including judgments, advisory opinions, general comments and observations in the review of state periodic reports. As Christine Chinkin notes in her essay on 'The CEDAW Committee and Violence against Women' (Chapter 12), the equality-based model of the Convention on the Elimination of All Forms of Discrimination against Women was criticized soon after its adoption for focusing on areas in the public sphere of most concern to men. This framework 'failed to account for the ways in which human rights abuses affect women differently because of their gender. In particular the Convention did not address the issue of violence against women committed because they are women' (p. 370). What was needed, Chinkin writes, 'was a reconceptualisation of human rights law to take account of violence against women' (p. 371 ). The Committee on the Elimination of Discrimination against Women (CEDAW Committee) responded to this call in its General Recommendation No. 19, which recognizes 'the reality[ ... ] that women experience arbitrary deprivation of life most frequently from within the family, or from the community rather than at the hands of state agents' (p. 370). Chinkin provides a succinct description of the genesis of the general recommendation, along with examples of its application in the CEDAW Committee's review of state reports and individual complaints. The Committee has not placed

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its focus on cases of individual killings, but instead, has called upon states to address the sociocultural problems underlying this violence, and to take measures to transform the structural nature of gender violence by transforming attitudes, cultural stereotypes and behaviours. Chinkin also discusses impunity for violence against women, obstacles to women's access to justice and the important state obligation to take steps to prevent violence against women in the first place and not just after it has taken place. She sets out the range of measures the Committee has recommended to counter violence against women, and notes the Committee's concern that information and data on gender-based violence continue to be inadequate. Alice Edwards provides a valuable contribution on how the non-discrimination principle has been developed and applied in 'Violence against Women as Sex Discrimination: Judging the Jurisprudence of the United Nations Human Rights Treaty Bodies' (Chapter 13). She explores how the concepts of equality and non-discrimination on the basis of sex have been interpreted generally, and analyses in detail how these concepts have been applied by the UN human rights treaty bodies to various forms of violence against women. She remarks that since adoption of the UN Charter, although there has been progress in that substantive rather than simply formal equality is understood to be the goal, 'there is still uncertainty as to the meaning of the terms and their application in particular settings' (p. 392), and the implementation of these principles by the treaty bodies is mixed. Addressing violence against women through the principles of equality and nondiscrimination is an approach that Edwards finds 'inherently problematic' (p. 393). This is in part because 'it equates violence against women to sex discrimination and is therefore subject to understandings of the latter term, which have proven to be complex and unsettled (however they are defined)' (p. 393). Another reason is that 'this approach covers only gender-related forms of violence rather than all forms of violence against women and creates, therefore, a two-tiered system of protection' (p. 393). Additionally, it reinforces an international legal system that disadvantages women by subjecting them to additional, different, or unequal criteria. By requiring women to characterize the violence they suffer as sex discrimination rather than as violence per se, they are treated unequally under the law. (p. 393)

Indeed, [u ]tilizing sex discrimination law because it is the only available remedy almost covers up the violence that has occurred or diminishes the extent of the conduct. ... There is something counterintuitive about calling violent conduct discrimination rather than violence itself (p. 445)

Kevin Boyle and Anneliese Baldaccini's 'A Critical Evaluation of International Human Rights Approaches to Racism' (Chapter 14) provides a thorough and insightful analysis of the subject. In a detailed part explaining how central racial discrimination has been in the development of international human rights law, they discuss the 'pioneering studies' (p. 460) of the Sub-Commission on Prevention of Discrimination and Protection of Minorities. Their essay explores the definition ofracial discrimination and the scope of the substantive provisions of the Racial Discrimination Convention. It then explains how the CERD Committee has applied these provisions in practice, providing examples in such areas as justified distinctions in the case of non-nationals, special measures and affirmative action, the public and private reach of the Convention, governmental interference in private conduct when it comes to hate

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speech and remedies for victims of discrimination. It also briefly addresses the important provision in Article 7 requiring states to address the root causes of racial discrimination. The essay next presents an assessment of the work of the CERD Committee. The authors remark that, considering the widespread and serious nature of racial discrimination in the world, it is disappointing that so few individual complaints have been submitted to the Committee, a fraction in comparison with those submitted to the Human Rights Committee. Boyle and Baldaccini also describe and assess of the work of the Special Rapporteur on racism, racial discrimination, xenophobia and related intolerance, and the UN decades and world conferences to combat racism and racial discrimination. They conclude their review of 50 years of international human rights approaches to racial discrimination with a 'mixed verdict in terms of achievement' (p. 502). There were successes in ending apartheid and rejecting racial discrimination as a state ideology, but as for rejection of racist beliefs and the elimination of racial and ethnic discrimination, they remark, 'the record is dismal' (p. 502). They end with a call for new approaches and a renewed focus on such measures as education. Another body that has played an instrumental role in interpreting and applying the principles of equality and non-discrimination is the European Court of Justice (ECJ), whose jurisprudence on the subject Sejal Parmar examines in 'The European Court of Justice andAntiDiscrimination Law: Some Reflections on the Experience of Gender Equality Jurisprudence for the Future Interpretation of the Racial Equality Directive' (Chapter 15). The starting point for her essay is the European Union's Racial Equality Directive, which prohibits racial discrimination in such important areas as health care, education and housing. Because gender equality law was a source of inspiration for the Racial Equality Directive, Parmar examines the sex equality jurisprudence of the European Court of Justice to assess potential areas of relevance for interpreting the Directive. In the process, Parmar finds what she calls a 'reflexive cross-fertilisation process between EU race and gender equality law' (p. 51 I, emphasis in original). The essay is a useful resource on ECJ decisions on a range of issues in sex equality, including the Court's approaches to what constitutes discrimination, what evidence is needed to prove indirect discrimination, exceptions to the principle of equality, including how to assess genuine occupational qualifications, what positive action measures are permissible to achieve substantive equality and what burden of proof to use in discrimination cases. Another relevant work too lengthy to include in this volume is Stephanie Farrior's ( 1996) 'Molding the Matrix: The Theoretical and Historical Foundations of International Law and Practice Concerning Hate Speech'. The prohibition of hate speech is required by some human rights treaties and permitted by others as a measure to counter national, racial or religious discrimination or hatred. 6 This essay provides a detailed account of the drafting history of the relevant treaty provisions, explains how these provisions have been applied in practice, and analyses the theories that emerge.

During the drafting of the hate speech provision of the Civil and Political Rights Covenant (Article 20), the Philippines proposed an amendment adding several categories, including 'sex', to the prohibited bases for advocating hatred and discrimination, but the proposal was not adopted. UN Doc. E/CN.4/365 ( 1950).

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Non-Legal Measures for Achieving Equality and Non-Discrimination Legislation and judicial decisions will not, alone, achieve equality and non-discrimination. As a delegate stated during the drafting of the Racial Discrimination Convention, '[u]sing legislation by itself was like cutting down a noxious weed above the ground and leaving the roots intact' (quoted in Banton, 1996, p. 59). As Kevin Boyle and Anneliese Baldaccini note in their essay included in this volume, [e]limination of racial, ethnic, and other types of discrimination, as forms of human rights violation, requires significant social change in most if not all societies. It cannot be achieved solely by the enactment of anti-discrimination laws, important as such laws are. (p. 451)

The final part of this volume presents works that explore treaty provisions setting out measures beyond legislation and judicial action that states are to take in order to eliminate discrimination and achieve equality. One of the most important measures that can help counter prejudice is education. The central importance of education in achieving other rights is conveyed by Fareda Banda in her essay 'Article 10' (Chapter 16) in the comprehensive volume The UN Convention on the Elimination ofAll Forms of Discrimination Against Women: A Commentary, edited by Marsha Freeman, Christine Chinkin and Beatte Rudolf. Banda notes that education is 'arguably the most important' of the economic, social and cultural rights in the Women's Convention in that it facilitates the enjoyment of other rights (p. 534). In addition to proclaiming the equal right to education, Article IO sets out a number of specific measures that states should take to ensure this right, including the revision of textbooks and teaching methods to eliminate any stereotyped concepts of the roles of men and women. After providing a brief overview of the drafting history of Article I 0, Banda explains how the CEDAW Committee has interpreted the Article's provisions in its General Recommendations, Concluding Observations and Optional Protocol jurisprudence. She also provides examples where the CEDAW Committee has addressed intersectional discrimination in, for example, the experience of education discrimination by minority and indigenous women and girls. In addition, she provides examples of state court judgments that have cited and relied on CEDAW Convention Article I 0. The CEDAW Committee has interpreted the requirement that education be enjoyed 'on a basis of equality between men and women' to require not just formal equality, but substantive equality and transformative equality through structural change and measures aimed at abolishing stereotypes. The 'all appropriate measures' that states must take to ensure the right to education, the Committee has indicated, include the provision of 'training on changes in legislation and implementation measures to police, judges, health personnel, media, community and religious leaders' (p. 557). The media can play a vital role in helping bring about the changes in attitudes called for in Article 10. This includes the provision of information on family planning, to which Article 10 requires states ensure access, and the Committee has called upon states to encourage the media to play this role. The essay concludes with the observation that, although no state has entered a reservation to Article I 0, a number of reservations entered to other provisions may have an impact on the enjoyment of the right to education without discrimination. The drafters of the Racial Discrimination Convention recognized that laws alone will not suffice in reducing discrimination. Article 7 of the Convention requires states to take

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measures to combat prejudices that lead to racial discrimination, 'particularly in the fields of teaching, education, culture and information' (p. 561, n. 10). Given the importance of destroying the root causes of racism, it is curious that Article 7 has received so little attention by commentators. One scholar involved in drafting the Convention includes no section on Article 7 in his publication giving an article-by-article elaboration of the treaty (Schwelb, 1966). A long-time member of the CERD Committee wrote in his book on the Convention that: 'Articles 2-6 list what states parties must do in order to eliminate racial discrimination' (Banton, 1996). The statement ignores what states must do under Article 7. Stephanie Farrior addresses this gap in coverage in 'The Neglected Pillar: The "Teaching Tolerance" Provision of the International Convention on the Elimination of All Forms of Racial Discrimination' (Chapter 17). This essay traces the drafting history of Article 7, and discusses the range of implementation measures the CERD Committee has encouraged through its statements in reviewing state reports and in issuing General Recommendations. As Ingrid Westendorp notes in 'Using Culture to Achieve Equality' (Chapter 18), '[a]s long as harmful traditions and stereotyped gender patterns are not replaced by new customs and traditions that are based on the idea of gender equality, women's human rights will remain a dead letter' (p. 569). The drafters of the CEDA W Convention recognized this by including Article 5, which requires states to take measures to 'modify the social and cultural patterns of conduct of men and women' in order to eliminate prejudices as well as practices based on notions of inferiority of women and stereotyped roles for men and women. Westendorp traces the drafting history of Article 5 as well as its connection with the related provision in Article 2, which requires states to 'take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women' (p. 571, n. 5). She analyses the recommendations made to states by the CEDA W Committee on what measures would be 'appropriate' in implementing Article 5. She also discusses what she calls 'the two faces of culture' (p. 580) examining culture not just as a barrier, but also its potential as an instrument of change. Space constraints did not allow for inclusion of other valuable works on equality and nondiscrimination in this volume. Among these are Karima Bennoune's (2007) 'Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression, and Women's Equality under International Law', which argues forcefully for inserting gender equality into a debate that has tended to focus on religious freedom; Bennoune is critical of traditional human rights groups for not doing this. Alison Stuart (2014) examines the issue of equality within religion and women's equal right to freedom of religion in her essay 'The Right to Freedom of Religion: Equal Right or Male Right?' Published after the selections for this volume were compiled is a detailed and insightful analysis by Simone Cusack and Lisa Pusey (2013), 'CEDAW and the Rights to Non-Discrimination and Equality'. The international law on equality and non-discrimination continues to be a dynamic area of the law, and our understanding of the ways in which discrimination and inequality have an impact on human rights continues to develop. Climate change is one of the greatest challenges facing humankind today. The impacts of climate change are borne disproportionately by those most subject to inequality and discrimination. Former UN High Commissioner for Human Rights Mary Robinson is now devoting herself to Climate Justice, her foundation created

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to 'put justice and equity at the heart of responses to climate change' .7 An instrument that may help shape the future development of international obligations on equality and nondiscrimination is the Declaration on Climate Justice,8 which Robinson developed along with other global leaders. Infused with the equality principle, the Declaration begins with the ringing words that open Article 1 of the Universal Declaration of Human Rights: 'All human beings are born free and equal in dignity and rights.'

References Banton, Michael ( 1996), International Action against Racial Discrimination, Oxford: Clarendon Press. Bennoune, Karima (2007), 'Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression, and Women's Equality under International Law', Columbia Journal of Transnational Law, 45, pp. 367-426. Cusack, Simone and Pusey, Lisa (2013), 'CEDAW and the Rights to Non-Discrimination and Equality', Melbourne Journal of International Law, 14, pp. 1-39. De Pizan, Christine (1982/1405), The Book ofthe City ofLadies, trans. Earl Jeffrey Richards, New York: Persea Books. Farrior, Stephanie (1996), 'Molding the Matrix: The Theoretical and Historical Foundations of International Law and Practice Concerning Hate Speech', Berkeley Journal of International Law, 14, pp. 1-98. Lauterpacht, Hersch ( 1945), An International Bill of the Rights of Man, Oxford: Oxford University Press. Schwelb, Egon (1966), 'International Convention on the Elimination of All Forms of Racial Discrimination', International and Comparative Law Quarterly, 15, pp. 996-1068. Sen, Amartya ( 1979), 'Equality of What' (The Tanner Lecture on Human Values, Stanford University, 22 May), at: tannerlectures.utah.edu/_documents/a-to-z/s/sen80.pdf. Shelton, Dinah (2009), 'Prohibited Discrimination in International Law', in Aristotle Constantini des and Nikos Zaikos (eds), The Diversity of International Law: Essays in Honour of Professor Kalliopi K. Koufa, Leiden: Martinus Nijhoff Publishers. Stuart, Alison (2014), 'The Right to Freedom of Religion: Equal Right or Male Right?', in Niahm Reilly and Stacey Scriver (eds), Religion, Gender and the Public Sphere, New York: Routledge, pp. 180---91. Weissbrodt, David (2008), The Human Rights of Non-Citizens, New York: Oxford University Press.

Mary Robinson Foundation-Climate Justice, at: http://www.mrfcj.org/about/mission-andvision.html. http://www.mrfcj.org/med ia/pdtIDeclaration-on-Cl imate-Justice. pdf.

Part I Concepts of Equality and Non-Discrimination

[1] EQUALITY JARLATH CLIFFORD

is an immensely challenging, complex, and dynamic concept. Although most persons have an intuitive understanding of equality,1 their diverse characteristics and range of experiences mean that they are likely to reach very different conclusions when asked to explain equality. In other words, equality means many things to many people. These various perspectives are made manifest both positively and negatively in society. Often, the human diversity that should be promoted, embraced, and cherished, instead triggers prejudice, discrimination, and oppression. Laws and policies may draw conscious and unconscious distinctions that discriminate against particular groups or individuals. 2 The net effect of de facto and de jure discrimination is that those perceived as different are unable to enjoy fundamental human rights on an equal basis with others, and they continue to be abused and denied basic social goods, benefits, and public safeguards. Against this backdrop, international human rights law has developed a multidimensional relationship with the principle of equality. As a structural principle, equality provides a conceptual framework through which to understand and analyse human rights issues-and through which to justify human rights decisions. It provides a spotlight for identifying key issues in complex cases and acts as a moral lever for explaining human rights protections. 3 Thus, equality (together with the related EQUALITY

Sandra Fredman, Discrimination Law (1st edn, OUP 2002) 1. Dinah Shelton, 'Prohibited Discrimination in International Human Rights Law' in Aristotle Constantinides and Nikos Zaikos (eds), The Diversity of International Law: Essays in Honour of Professor Kalliopi K. Koufa (Martinus Nijhoff Publishers 2009). 3 See eg the United Kingdom case of A and others v Secretary of State for the Home Department (Belmarsh case). 1

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principle of non-discrimination) provides a moral and analytical mechanism for ensuring that all people effectively enjoy human rights guarantees. The principle of equality also binds human rights norms and embellishes them with both a procedural and substantive content. Taking stock of these dimensions, this chapter will examine the normative and philosophical bases of the principle of equality. Second, it explores and maps out how contemporary international human rights law transposes and applies the principle, especially as it relates to the prohibition of discrimination. Finally, the chapter will explore the claim that a right to equality exists in international law and will attempt to identify some of the benefits of this right. The principle of equality in international human rights law is multifaceted. At the theoretical level, when scholars talk of equality, they often talk about different concepts which, while rooted in the same overarching framework, frequently can have very different implications for human rights. These discussions broadly encompass the concepts of formal and substantive equality. Formal equality refers to the idea that things that are the same or similar should be treated in the same or similar ways. As Section 2 will discuss, this concept is linked to the notion that equality requires consistent treatment of all. On the other hand, substantive equality refers to the idea that equality provisions should be sensitive to the informal arrangements and barriers that cause inequality for some, and account for them by requiring different treatment for persons who are disadvantaged in society. Section 2 of this chapter sets out that one or more conceptions of equality based on these two concepts, such as equality of opportunity, equality of outcomes, or transformative equality, are generally adopted when formulating equality law and policy. Alongside this theoretical discourse, international human rights law transposes these concepts within the principle of equality primarily through the dynamic of equality and non-discrimination. Thus, in practice the prohibition of discrimination, defined in Article 1(1) of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the requirement to take some form of positive or special measures found in Article 1(4) of CERD, and so forth, represent the key articulations of the principle of equality in international human rights law. Sections 3 and 4 discuss in greater detail how these two strands of the principle of equality have been transposed in international human rights instruments and interpreted within its jurisprudence.·

1. THE PHILOSOPHICAL FOUNDATIONS

OF EQUALITY Equality is a common cornerstone of many contemporary democracies. To appreciate why it occupies a cherished position in contemporary legal orders, it is necessary

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to examine how the understanding of equality has evolved over time. 4 The United Nations Educational, Scientific, and Cultural Organization's (UNESCO) Birthright of Man illustrates that the idea of equality has preoccupied social thinkers and philosophers from all civilizations throughout history. 5 Some scholars contend that even social philosophies such as Confucianism, which they traditionally perceived as promoting societal difference and inequality, have made important contributions to our current understanding of the idea of equality. 6 An understanding of why contemporary rights-based democracies have appropriated equality as a constitutional norm begins with classical Greece. 7 Thucydides proposed that equality prescriptively indicates how law ought to operate in a democracy. 8 In particular, he suggested that procedural equality is instrumental for social justice-a key component of the democratic order. Plato, on the other hand, argued that the key differences which existed between individuals, for example, on the basis of sex, should be accounted for in exigent times. 9 Greek philosophy's most significant contribution to the notion of equality is provided by Aristotle's maxim that 'things that are alike should be treated alike: to with an implicit corollary that the unlike should be treated according to the relevant differences. Aristotle's maxim directly underpins the formal ideas of equality that are important for addressing specific human rights concerns, for instance, how the legal system should react when laws on their face treat some people unfavourably because of a shared characteristic. Yet, classical Greek notions have leaned towards procedural forms of equality and lack many characteristics that are integral to modern human rights norms. One such characteristic is universality. This basic human rights principle is absent from Greek thinking, which envisaged equality between citizens of the state, but not between citizens and non-citizens. Indeed, the idea of equality was applied differently to different people, depending on their political status. The idea of universal citizenship, a concept with which international human rights law and contemporary constitutions struggle today, was absent from classical Greek philosophy. 11 Universalism was critical to Christian thinking on equality. St Thomas Aquinas emphasized an approach to equality that united everyone under God's direction in 4 Jarlath Clifford, 'Locating Equality: from Historical Philosophical Thought to Modern Legal Norms' (2008) 1 The Equal Rights Rev 11. 5 Jeanne Hersch (ed), Birthright ofMan (UNESCO 1969). The collection shows that social, political, and philosophical thinkers from Africa, Asia, the Middle East, and Europe have considered equality to be a fundamental component of a society. 6 See AT Nuyen, 'Confucianism and the Idea of Equality' (2001) 11 Asian Philosophy 61. See also Clifford (n 4) 12. 7 George L Abernethy, Introduction to the Idea of Equality: An Anthology (John Knox Press 1959) 8 Abernethy (n 7)38. 15-24. 9 Abernethy (n 7) 41. ' 0 Aristotle, Ethica Nicomachea (JL Ackrill and JO Urmson (eds), W Ross (tr), OUP 1980) 112-17, 113ia-31b. " Abernethy (n 7) 18.

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a common bond of happiness. Aquinas' concept of divine law commanded that all unite in mutual love of God. 12 Thus, in contrast to Greek philosophers who limited the application of the principle of equality to members of set democratic orders, Aquinas presupposed that by divine design and law the principle of equality applied to everyone. Natural law theorists added to the body of knowledge which has shaped modern understanding of the principle of equality. In Leviathan, for instance, Hobbes set out his vision of equality within natural law: Nature hath made men so equal in the faculties of body and mind as that, though there be found one man sometimes manifestly stronger in body or of quicker mind than another, yet when all is reckoned together the difference between man and man is not so considerable as that one man can thereupon claim to himself any benefit to which another may not pretend, as well as he.13

Hobbes thus suggested that despite the inevitability of individual differences with respect to physical and mental talents, such differences should not by themselves imbue benefits. Conor Gearty has argued that Hobbes's basic premise with respect to equality is that if everybody is equal in terms of natural rights, they must be able to use their equal natural rights to make choices regarding their participation in society. Furthermore, he argues that the natural law discourse of Hobbes's time created a progressive vision of equality that provides direction for modern law-making in facilitating 'real' equality. 14 As with other natural law thinkers, Hobbes believed that equality imparted natural rights on the basis of an individual's humanity. John Locke asserted that, under natural law, all men were equal in the sense that every man had an equal right to his natural freedom without being subjected to the will or authority of any other man. Yet, he did not suggest that all men were equal in everything: 'I cannot be supposed to understand all sorts of equality: age or virtue may give men a just precedency: excellency of parts and merit may place others above the common level.' 15 Likewise, Thomas Paine declared that through the will of God all men are born equal with equal natural right, and the only basis of distinction is that between the sexes. 16 By applying this position, natural law theorists were situating the discourse of equality within rights-based language, thereby enabling individuals to assert the principle of equality for political and legal ends.

12 Abernethy (n 7) 73. " Thomas Hobbes, Leviathan, (first published 1651, Forgotten Books 2008) 84. 14 Conor Gearty, 'Can Human Rights Deliver Real Equality?' (5th Annual LAG Lecture, London, 19 November 2007) accessed 13 February 2012. 15 John Locke, Second Treatise of Government (CB Macpherson (ed), first published 1689, Hackett Publishing 1980) 31. 16 Thomas Paine, The Rights of Man (eBooks@Ade]aide 2009) accessed 10 March 2012.

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Many contemporary political and legal philosophers have contested the normative relevance of equality for underpinning modern legal norms. Some scholars, such as Nozick, suggest that equality is normatively defunct and cannot be used to underwrite governmental interference in the distribution of resources. t 7 Others recognize that different notions exist when people talk of equality. Berlin, for exam ple, analyses two of these notions: (i) equality as rules and (ii) equality proper.18 After balancing the two against each other, Berlin concludes that equality as rules is a more convincing notion of equality, because even in conditions where a moderate form of equality proper is permitted to flourish: the criterion of equality has plainly been influenced by something other than the mere desire for equality as such, namely, desire for liberty or the full development of human resources, or the belief that men deserve to be as rich or as powerful or as famous as they can make themselves-beliefs which are not connected with the desire for equality at all.1 9

Other scholars, such as Peter Westen20 -and later Christopher Peters 21 -argue that equality is merely a tautology, entirely 'circular', because it tells us to treat like people alike, but it is completely silent about what is meant by 'like people'. As with Berlin's observation about equality proper, they assert that equality without further moral guidance says nothing about how we should act and is anterior to and dependent upon rights to give it form and function. 22 The contributions of John Rawls, Amartya Sen, and Ronald Dworkin perhaps have been the most significant to the contemporary understandings of equality's normative importance in the democratic order. All three agree on equality's normative worth but approach it in different ways. John Rawls, for instance, sets out that a sound model of justice requires adherence to two overarching principles: 1. Equality in terms of basic rights and liberties; and

2. Equality in respect to primary social goods. 23 Equality is thus a necessary and common component of Rawls's justice equation. Amartya Sen's seminal work contends that focusing o_n the equalization of social goods is not the correct approach. Instead, Sen suggests that we should attempt to equalize individual capabilities because 'there is evidence that the conversion of goods to capabilities varies from person to person substantially, and the equality of the former may still be far from the equality of the latter'. 24 Robert Nozick, Anarchy, State, and Utopia (Basic Books 1974) ch 8. Richard Wollheim and Isaiah Berlin, 'Equality' (1956) 56 Proceedings of the Aristotelian 19 Wollheim and Berlin (n 18) 317. Society 281. 20 Peter Westen, 'The Empty Idea of Equality' (1982) 95 HLR 537. 21 Christopher J Peters 'Equality Revisited' (1997) no HLR 1211. 22 Westen (n 20) 547. 23 John Rawls, A Theory of Justice (Harvard UP 1971) 60. '" Amartya Sen, 'Equality of What' (The Tanner Lecture on Human Values, Stanford University, 22 May 1979) 219 accessed 13 February 2012. 17

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Dworkin's work also has been hugely influential to understanding the intrinsic worth of the principle of equality in law and policy. He argues that equality is not anterior to rights or liberties at all, but that: [L]iberties must be recognized only when the fundamental right to treatment as an equal can be shown to require these rights. If this is correct then the right to distinct liberties does not conflict with any supposed competing right to equality, but on the contrary follows from a conception of equality conceded to be more fundamental. 25

Dworkin asserts that it is a primary obligation of government not only to treat people with concern and respect, but to treat them with equal concern and respect. 26 He proceeds, in later work, to advocate for what he terms 'equality of resources'. 27 Under his construct of equality of resources: [W] e must, on pain of violating equality, allow the distribution of resources at any particular moment to be (as we might say) ambition-sensitive ... But on the other hand, we must not allow the distribution of resources at any moment to be endowment-sensitive, that is, to be affected by differences in ability of the sort that produce income differences in a laissez-faire economy among people with the same ambitions. 28

In other words, a choice/endowment distinction is integral to Dworkin's model of equality, in which distinctions or inequalities that the errant choices of an individual cause are morally acceptable, but those which are the result of a specific endowment of an individual are not. Part of the attraction of Dworkin's model of equality is its simplicity. Everyone has an intuitive understanding of what it means to be concerned for, or to respect, others. Consequently, the principle of equality in this sense underscores that human rights are based on basic and common human values which everyone understands, shares, and approves. Jack Donnelly has applied Dworkin's model of equality within international human rights law and has argued that 'the Universal Declaration [of Human Rights] model is rooted in an attractive moral vision of human beings as equal and autonomous agents living in states that treat each citizen with equal concern and respect'. 29 Moreover, he asserts that the basic moral equality of all human beings, together with the counterparts of equal respect and equal concern, has provided the foundation for a convergence on the rights of the Universal Declaration of Human Rights, 30 a basis to understand the right to personal liberty, 31 and a justification for requiring states to implement social and economic rights. 32

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27 28 29

30

Ronald Dworkin, Taking Rights Seriously (Harvard UP 1977) 274. Dworkin, Taking Rights Seriously (n 25) 272-73Ronald Dworkin, 'What is Equality? Part 2: Equality of Resources' (1981) 10 Phil & Pub AJJ 283. Dworkin, 'What is Equality?' (n 27) 311. Jack Donnelly, Universal Human Rights in Theory and Practice (2nd edn, Cornell UP 2003) 38. 31 Donnelly (n .29) 44. 32 Donnelly (n 29) 46. Donnelly (n 29) 41.

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Equality is integral to our moral, philosophical, and political understanding of the idea of democracy. Our common awareness regarding the need for equality (of some form) may be one reason why equality is so often the backbone of contemporary justice systems. Classical Greek philosophy believed that some formal notion of equality was fundamental to the successful operation of the democratic order. While this notion of equality has clearly advanced over time, the transition to realizing an egalitarian purpose for equality has been slow. Nevertheless, over time political and legal philosophers have incrementally recognized equality's potential to combat disadvantage and enable everyone to share in the benefits of democratic membership. Contemporary human rights law's reliance on the principle of equality is evident.

2. EQUALITY AND NON-DISCRIMINATION CONCEPTS IN HUMAN RIGHTS LAW Although, linguistically, the opposite of equality is inequality, in legal terms non-discrimination or anti-discrimination are often preferred to frame the legal or policy action used to achieve equality. Ellis, writing about this legal corollary, states that 'the non-discrimination principle is essentially the non-dynamic part of the equality package; it works only in conjunction with dynamic measures of social reorganization'. 33 The Inter-American Court of Human Rights has also referred to this special relationship stating: The element of equality is difficult to separate from non-discrimination. Indeed, when referring to equality before the law ... this principle must be guaranteed with no discrimination. 34

For such reasons, equality as non-discrimination is often promoted as a principle dynamic of international human rights law. In practice, while there is an underlying the concept of equality, there are several different conceptions of equality that apply in different contexts. 35 Claiming a violation of the right to non-discrimination or equality before the law thus often triggers an evaluation of one or more conceptions of equality. Indeed, in some cases it is not possible to fit the inequality or discrimination the victim experiences neatly into a distinct classification, and it is necessary

33 Evelyn Ellis, 'The Principle of Equality of Opportunity Irrespective of Sex: Some Reflections on the Present State of European Community Law and Its Future Development' in Alan Dashwood and Siofra O'Leary (eds), The Principle of Equal Treatment in EC Law (Sweet & Maxwell 1997) 180. 34 Juridical Condition and Rights of the Undocumented Migrants, para 83. 35 Coiro O'Cinneide, 'Fumbling Towards Coherence: The Slow Evolution of Equality and Anti-Discrimination Law in Britain' [2006] NILQ 57.

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to analyse the particulars of a case through a number of sometimes-overlapping conceptions of equality. This variety illustrates how problematic it is to apply the concepts of equality and discrimination in human rights discourse. Much academic literature has attempted to pinpoint the theoretical justifications for equality and non-discrimination provisions. Some works have sought to understand the justification of equality protections in national contexts. For example, Gardner has argued that anti-discrimination laws operating in national contexts promote individual autonomy.36 Other research has attempted to understand how the concepts of equality and discrimination are operating within human rights contexts. For example, McCrudden and Kountouros identify four broad and porous approaches to equality and non-discrimination: (i) equality as 'rationality'; (ii) equality as protective of 'prized public goods'; (iii) equality as preventing 'status-harms' arising from discrimination on particular grounds; and (iv) equality as proactive promotion of equality of opportunity between particular groups. 37 In the main, equality and non-discrimination provisions generally tend to adopt one or more of the following approaches: (i) equality as consistent treatment; (ii) equality of opportunity; (iii) equality of outcomes; or (iv) transformative equality. Some of these approaches are fluid and, in some cases, adopt characteristics of both formal and substantive equality. Consequently, rather than being distinct or isolated classifications, they are ranges in a spectrum which often blend into one another.

2.1

Equality as consistent treatment

This approach is closely associated with Aristotle's formal equality maxim that 'things that are alike should be treated alike:38 It represents the simplest understanding of equality today. Based on individual justice, its central ethical claim is that each individual is equal under laws that should apply to everyone equally. Hence, treating people unequally or inconsistently is unfair, 39 because a person's individual physical or personal characteristics (or status) should be irrelevant in determining whether he or she has a right to some benefit or gain. The prohibition against direct discrimination that is present in many legal systems, and can be defined as treating one person less favourably than another is, has been, or would be treated in a comparable situation on specific grounds, applies this approach in practice. John Gardner, 'Liberals and Unlawful Discrimination' (1989) 9 OJLS 1. Christopher McCrudden and Haris Kountouros, 'Human Rights and European Equality Law' in Helen Meenan (eds), Equality Law in an Enlarged European Union: Understanding the Article 13 38 Aristotle (n 10) 112-17, 113ia-31b. Directives (CUP 2007). 39 Murray Wesson, 'Equality and Social Rights: An Exploration in Light of the South African Constitution' [2007] PL 748,751. 36

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Liberals defend this approach on the basis that it challenges arbitrary and irrational decision-making, for example, when policies or people selectively disadvantage others due to an irrelevant characteristic. 40 Thus, a key benefit is its ability to protect against arbitrary treatment that arises from irrational prejudice. But, on its own, requiring consistent treatment insufficiently addresses the disadvantage and inequality some individuals and groups experience. Suppose, for example, that a state passed a law which said that all brown-haired people-irrespective of any other criteria-are forbidden to attend university. Equality as consistent treatment tells us only to apply this law equally and says nothing about the inherent unfairness and arbitrariness of such a law. Consequently, without further substantive guidance, laws that are prima facie morally wrong could be applied equally, with the likely result that they would deepen inequality.

2.2

Equality of opportunity

Some have sought to solve some of the problqns with the consistent treatment approach by equalizing the starting points for individuals from disadvantaged groups, so they can compete for social, economic, political, or other goods alongside other individuals. The equality of opportunity approach aims to strike an appropriate balance between formal and substantive notions of equality. To achieve this balance and equalize starting points, equality of opportunity approaches borrow some elements of the redistributive theory of justice, but do not cross over into pure utilitarian approaches. 41 Essentially these approaches aim to cultivate conditions which enable individuals to start at the same competitive position, regardless of their characteristics, background, or status. In this way, they account for the limited potential of formal equality to achieve full and effective equality for some groups. Injecting substantive equality-based mechanisms into the formal model addresses these limitations. In doing so, it permits certain forms of action in order to improve the lot of individuals or groups that are experiencing inequality. For example, it may allow individuals from traditionally disadvantaged groups to receive specialized education or training, or encourage them to apply for jobs in sectors or industries where the group is underrepresented.42 Returning to the example of brown-haired people noted above, the equality of opportunity approach would require universities to encourage applications from brown-haired people in order to increase access among this group and redress formal or social exclusions that have previously existed.

Paul Brest, 'In Defense of the Antidiscrimination Principle' (1976) 90 HLR 1. 41 See for example, Fredman (n 1). 42 Christopher McCrudden, 'The New Concept of Equality' (2003) 4 ERA Forum 9.

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2.3 Equality of outcomes An alternative substantive model of equality goes beyond equal access to opportunities and instead aims at a fair distribution of goods and benefits, in order to improve the lot of those who have been historically disadvantaged in society. Specific measures are adopted for them, 43 based on a belief that, due to historic disadvantages, individuals from some groups continue to suffer discrimination and marginalization and will be unable to overcome their situation unless mechanisms are put in place to equalize outcomes. In the case of the admission of brown-haired people to university, the equality of outcomes model would go further than the equality of opportunity approach by not just requiring the encouragement of applications, but by assuring that places are reserved for brown-haired people at university. Some scholars and policy-makers reject equality of outcome policies, contending that they demand too many state resources (including state regulation) and impose too high a price on individual autonomy. Additionally, some scholars claim that the mechanisms equality of outcomes policies adopt, for instance quotas, overshadow the need for social change by adapting or reorganizing existing institutions and structures. 44 Another charge laid against this approach is that it tends to be under-inclusive, only improving the position of those who are best placed to take advantage of these polices within the broader disadvantaged group. Finally, some members of disfavoured groups oppose the idea of substantive redistribution because, in their view, it reinforces their status as 'victims' and thus perpetuates stereotypes that lead to discrimination. 45 Unsurprisingly, therefore, attempts to adopt and implement laws or policies based on this approach to equality are politically contentious, and opposition to such measures often ranges from those who abhor such action politically to those who charge that such policies will not sufficiently address the root causes of structural inequality.

2.4 Transformative equality Legal systems such as those of the European Union (EU) and the United Kingdom have recently adopted mechanisms aimed at achieving what is referred to as transformative equality. Like equality of outcomes, transformative equality seeks to accelerate equality for disadvantaged groups. Unlike equality of outcomes, however, which prescribes outcomes to be achieved through providing benefits for 43 Different terms, such as positive action, affirmative action, or special measures, are sometimes used to describe these measures. This chapter will use the term positive action. 44 See eg Bhikhu Parekh, 'A Case for Positive Discrimination' in Bob Hepple and Erika M Szyszczak (eds), Discrimination: The Limits of the Law (Mansell Publishing Ltd 1992). 45 See eg Mark A Drumbl and John DR Craig, 'Affirmative Action in Question: A Coherent Theory for Section 15(2)' (1997) 4 Rev Const Stud So.

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individuals, transformative equality aims to advance the position of disadvantaged groups through changing existing social structures and the way organizations and institutions function. Thus, transformative equality requires adaptive changes in the practices and structures of organizations and institutions, pursuant to an assessment of how they fail disadvantaged groups. The intent is to make organizations and institutions more indusive, more representative, and more accessible to disadvantaged groups. This approach has been employed primarily when the strong equality guarantees already present in some legal systems have failed to create the necessary change. The EU's gender mainstreaming agenda and the imposition of public sector equality duties in the cases of Britain and Northern Ireland46 are examples of transformative equality approaches in their infancy. Locating the theoretical foundations upon which the principle of equality is implemented is a difficult task. Different conceptions of equality underscore different human rights protections, and often different forms of equality need to be applied to different contexts. To a large extent, each of these approaches reflects the different ways in which equality acts as a structural principle within human rights law. As will be set out below, the principle of equality manifests itself at many levels in international human rights law, and it is neither linear nor static; instead, it is a dynamic concept which is constituted within human rights architecture to reflect the complexity and diversity of humanity and to address the many ways inequality and discrimination are rooted in society.

3. EQUALITY AS A STRUCTURAL PRINCIPLE OF INTERNATIONAL HUMAN RIGHTS LAW Well before the adoption of modern human rights instruments, equality was an important component of the international rule oflaw. In 1926, the Permanent Court oflnternational Justice stated that the Treaty of Versailles required 'equality in fact as well as ostensible legal equality in the sense of the absence of discrimination in the words of the law'. 47 Further, in the Minority Schools in Albania case, it asserted that to ensure the equal footing of nationals belonging to racial, religious, or linguistic minorities with other nationals, and to maintain national minorities' particularities, traditions, and characteristics, true equality between a majority and a minority required the preservation of the minority's own institutions and the very

46 See Bob Hepple, 'The New Single Equality Act in Britain' (2010) 5 The Equal Rights Rev 11; see also 47 Settlers of German Origin in Poland. O'Cinneide (n 35).

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essence of that which qualifies them as a minority. 48 These pre-United Nations (UN) commitments to the principle of equality were transposed into the UN Charter ('the Charter'). The Charter places the principle of equality front and centre as guiding principle for the UN' s purpose and mandate. Article 1(2) of the Charter states that the purpose of the UN is to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and Article 1(3) sets out that the UN must promote and encourage 'respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion'. It is the only right that the Charter specifically mentions, and indeed, the Charter makes the principle of equality an original structural foundation upon which to guarantee, secure, and develop human rights. One may plausibly contend that the principle of equality is so wedded to the Charter and the Universal Declaration of Human Rights (UDHR) that its absence would make the landscape of human rights look fundamentally different. Most of the major human rights instruments explicitly express a commitment to equality as a justification for the adoption of international standards and many extralegal human rights initiatives, such as the 1993 Vienna Declaration on Human Rights, have ensured that equality and non-discrimination are at the heart of developments in human rights policy. But what makes the principle of equality a 'structural' one in international human rights law? The first step in answering this question is to examine how the principle of equality has been transposed into the architecture of international human rights law. The second step is to appreciate how the principle of equality has been interpreted and applied. Turning to the first step, it seems the transposition process has taken shape in three distinct ways, namely: (i) equality- as a preambular objective of international human rights treaties; (ii) equality's implicit descriptive function in the normative understanding of the scope and application of human rights; and (iii) equality's codification in the substantive articles of human rights treaties.

3.1 Equality as a preambular objective A preamble in international treaty law is used to 'establish the general "philosophy" of the text as well as to set its general purpose'. 49 In other words, it introduces the spirit and the general objectives that the treaty aims to achieve. Equality is a defining feature of all international human rights preambles. The international order continually returns to the need to achieve equality as a justification for introducing human

Minority Schools in Albania, paras 48-52. Audrey Guichon, 'Some Arguments on the Universality of Human Rights in Islam' in Javaid Rehman and Susan Breau (eds), Relgion, Human Rights and International Law: A Critical Examination of Islamic State Practices (Martinus Nijhoff 2007) 186. 48

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rights standards. The preamble to the UDHR, for example, refers to the 'equal and inalienable rights of all members of the human family' and the 'equal rights of men and women'. Likewise, the 'the equal and inalienable rights of all members of the human family' is mentioned in the preambles to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child and most recently the Convention on the Rights of Persons with Disabilities (CRPD) go further by expressing a broader range of ways that equality underscores the text of the respective treaties. For example, CERD's preamble states that all human beings are equal before the law and are entitled to equal protection of the law and CEDAW's preamble speaks to promoting women's equality with men in all fields. The CRPD's preamble refers to the barriers persons with disabilities face in their participation as equal members of society and the need for persons with disabilities to have equal enjoyment of rights and equal opportunities. The overarching preambular commitment to equality suggests that alongside other principles, such as dignity, achieving greater equality is a principal purpose that the international order aims to achieve through the international human rights movement. Indeed, realizing the equal rights of all people is one of the few common declarations made throughout international human rights law. Thus, by being a core reason for adopting international human rights standards, equality acts as a cohesive instrument which enables states and individuals to take stock of the conceptual origins of these human rights standards and realize why they are necessary.

3.2 Equality serving an implicit descriptive function At a secondary level, equality serves an implicit descriptive function with respect to the nature and scope of human rights obligations. Commonly, the language of human rights states that they must be enjoyed by all human beings. Treaties continually use phrases such as 'everyone: 'all: or 'nobody' to frame the scope and contours of human rights. Describing human rights in this way ensures that the principle of equality is interwoven into the human rights fabric. Without this simple yet extremely important direction, the human rights landscape would be a much more contested domain. It appears that the drafters of human rights instruments have taken cognizance of the need to guarantee human rights through an equality paradigm. It is thus unsurprising that Articles 1 and 2 of the UDHR stress unequivocally that '(a]ll human beings are born free and equal in dignity and rights' and that the rights within the UDHR are an entitlement of everyone 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: respectively. It is clear from more

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recent human rights instruments that equality continues to drive how human rights guarantees are framed. Thus, the Charter of Fundamental Rights of the European Union guarantees that '(e]veryone has the right to respect for his or her physical and mental integrity'; 50 '( e]veryone has the right to respect for his or her private and family life, home and communications';51 and '(e]veryone is equal before the law', 52 Noting the prevalence of the principle of equality in framing human rights norms, Shelton has written: Equality and non-discrimination are implied in the fact that human rights instruments guarantee rights to 'all persons; 'everyone; or 'every human being'. In fact, the right to be free from discrimination has been called 'the most fundamental of the rights of man ... the starting point of all other liberties'. 53

Consequently, the right to life; 54 freedom from torture, cruel, inhuman or degrading treatment or punishment; 55 and many more basic human rights, must be enjoyed by 'everyone'. The importance of this instructive aspect of human rights law should not be underestimated. As noted above, without this instructive function, human rights would be a far more contested domain, and the principle of universality would have a less solid foundation. It must be accepted that although some rights, such as marriage or voting rights, have limits imposed upon them, their application is still subject to the principle of equality. In such cases, the need to apply different conceptions of equality in different contexts becomes clear. For example, substantive conceptions of equality recognize the need to treat people that are in different situations differently. This mirrors social norms in many countries which proscribe people from voting or marrying until the have the capacity to make fully informed decisions and understand the consequences of these decisions. When individuals attain this capacity to enjoy such rights they benefit from the formal concept of equality that ensures that no one is arbitrarily denied access to these rights. Thus, human rights law recognizes the necessity of making relevant distinctions and allows people to be treated differently when compelling reasons justify this.

3.3 Equality codification in the substantive articles of

human rights treaties Equality also serves an extremely important instructive function through its codification in the substantive articles of human rights treaties. First amongst these substantive articles is Article 7 of the UDHR, which states that '(a]ll are equal before 51 EU Charter Fundamentai Rights, Art 7. EU Charter Fundamental Rights, Art 3(1). EU Charter Fundamental Rights, Art 20. 53 Shelton (n 2) 1. Furthermore, Singh considers that the most important word in the UDHR is 'everyone'. See, Rabindher Singh, 'Equality: The Neglected Virtue' (2004) 2 EHRLR 141. 54 ICCPR, Art 6(1). 55 ICCPR, Art 7-

so

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the law and are entitled without any discrimination to equal protection of the law'. Analysing the UDHR from an equality perspective reveals the many ways equality is necessary to protect, promote, and fulfil human rights adherence. 56 Stating clearly at the earliest opportunity that human rights have to be applied equally to the entire human family and that they are an entitlement of everyone, the UDHR sets an equality agenda which has been transposed throughout international human rights law. Article 26 of the ICCPR reasserts Article 7 of the UDHR, stating that everyone is entitled to 'equality before the law and without any discrimination to equal protection of the law'. Article 2(1) guarantees the enjoyment of rights without distinction of any kind. In fact, the UN Human Rights Committee has added that unlike Article 2(1), which confines the principle of non-discrimination to the application of the rights in the ICCPR, 'article 26 ... provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities'. 57 Equality's influence in the ICCPR is also apparent in Article 3, requiring equal treatment of men and women in the enjoyment of the ICCPR's rights; Article 14(1), providing that all people shall be equal before courts and tribunals; and Article 23(4), requiring that states must take 'appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution'. The ICESCR is also imbued with commitments to the principle of equality. Article 2(2) proclaims that the rights in the ICESCR will be guaranteed without discrimination of any kind. Article 3 requires states to ensure that men and women will enjoy the economic, social, and cultural rights equally. Article 7 introduces equality in the workplace, including equal pay for equal work and equal opportunity for everyone to be promoted. Similarly, the ICESCR requires equality of rights in respect to education58 and health. 59 General Comment No 20 to the ICESCR recognizes that non-discrimination is an immediate and cross-cutting obligation in the Covenant. 60 Non-discrimination and equality are the fundamental components of international human rights law, essential to the enjoyment of economic, social, and cultural rights. 61 General Comment No 20 stresses that in order to fulfil the rights the ICESCR guarantees, it is not enough to end formal, or de jure, discrimination; positive action is also necessary. Therefore, states must 'adopt the necessary 56 For example, Arts 10, 16, 21(2), 21(3), 23(2), and 26(1) require equal treatment in the application of the rights to a fair and public hearing, marriage, access to public service, universal suffrage, pay for equal work and access to education respectively. 57 United Nations Commission on Human Rights (UNCHR), 'General Comment No 18: Nondiscrimination' in 'Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies' (29 July 1994) UN Doc HRI/GEN/I/Rev.1), para 12. 59 ICESCR, Art 12(1). ,. ICESCR, Art 13(c). w UN Committee on Economic, Social and Cultural Rights (UNCESCR), 'General Comment No 20: Nondiscrimination in economic, social and cultural rights' (ICESCR, Art 2, para 2), 2 July 2009, E/C.12/GC/20. 61 UNCESCR (n 60) para 2.

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measures to prevent, diminish and eliminate the conditions and attitudes which cause or perpetuate substantive or de facto discrimination'. 62 Of course, CERD and CEDAW deal exclusively and respectively with eliminating racial discrimination and discrimination against women. The two conventions have common standards to accelerate equality for those protected and to safeguard against discrimination in particular fields, for example, with respect to civil, political, economic, and social rights. 63 In addition, both conventions require states parties to take positive steps in order to reduce the inequality. 64 Hence, while many of the equality and non-discrimination guarantees contained in the UDHR are translated directly into the provisions of the ICCPR, the international legal order has recognized the context-dependent nature of providing equality to specific groups that are vulnerable to inequality and discrimination. More recently, the CRPD has relied upon equality as an underlying principle.65 Article 1 states that the purpose of the CRPD is 'to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disability'. Equality is deeply rooted within the general principles of the convention, under Article 3 in particular with relation to: non-discrimination, full and effective participation and inclusion in society, respect for difference and acceptance of persons with disabilities as part of human diversity and humanity, equality of opportunity, and equality between men and women. These principles are further reflected in substantive provisions of the CRPD. For instance, Article 5 provides for equality before and under the law, equal protection and benefit of the law, as well as non-discrimination, reasonable accommodation, and specific means to accelerate or achieve de facto equality. Article 12(2), which states 'that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life', is critically important for addressing long term structural inequalities that have denied basic legal rights to persons with disabilities. The CRPD also provides for equality in rights for persons with disabilities in a range of other ways, including access to justice,66 liberty of the person, 67 and right to respect for their physical and mental integrity. 68 The 1989 ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries also contains a number of provisions which codify the principle of equality and emphasize equality based on respecting differences. Article 2(1) sets out that governments have the responsibility to develop coordinated and 62 UNCESCR (n 60) para 8. 63 See CERD, Art 5; CEDAW, Art 4. '" CERD, Art 2(2); CEDAW, Art 4. 65 Council of Europe Commissioner for Human Rights, Who Gets to Decide? Right to Legal Capacity for Persons with Intellectual and Psychosocial Disabilities (Issue Paper, CommDH/IssuePaper (2012) 2). See also Jarlath Clifford, 'The UN Disability Convention and its impact on European Equality Law'

(2011) 6 The Equal Rights Rev 11. 66 Convention on the Rights of Persons with Disabilities, Art 13(1) (CRPD). 68 CRPD (n 66), Art 17. "' CRPD (n 66), Art 14.

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systematic action to respect indigenous and tribal peoples' integrity. Article 2(2)( a) explains that such action includes ensuring that members of these peoples benefit from the rights and opportunities which national laws and regulations grant to other members of the population on an equal footing. Article 3(1) states that '[i]ndigenous and tribal peoples shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination'. Furthermore, Article 4(1) requires the adoption of special measures for safeguarding the persons, institutions, property, labour, cultures, and environment of indigenous and tribal peoples. In Europe equality has been codified in Article 14 of the European Convention on Human Rights (ECHR), which protects against discrimination in the enjoyment of convention rights. A similar clause is contained in Article E of the Revised European Social Charter. It is noteworthy that these provisions only operate in conjunction with other treaty rights and do not stand alone. The later Protocol 12 to the ECHR added a broader right to non-discrimination applicable to any right set forth by law. Thus, as in the case of Article 26 of the ICCPR, Protocol 12 does not require the engagement of other convention rights. Alongside these mechanisms the EU has the power to address discrimination69 in certain fields through Article 19 (and Article 157) of the Treaty on the Functioning of the European Union. The EU has administered these powers through the adoption of equality directives including Council Directive 2000/78/ EC, 7°Council Directive 2000/ 43/EC,7 1 and Council Directive 2006/54/EC. 72 Some scholars have suggested that the use of different directives to address different forms of discrimination has fragmented EU law and made it inconsistent and hierarchical.7 3 The grounds of race and gender have broader legal protection from discrimination than the grounds of disability, age, sexual orientation, or religion and belief. As a result, civil society and equality experts have consistently urged the EU to adopt a new equality directive that would harmonize EU anti-discrimination law. Other regional human rights treaties also have codified equality in their guarantees. Article 1(1) of the American Convention on Human Rights contains a general non-discrimination provision. In addition, Article 24 {like Article 7 of the UDHR) states that '[a]ll persons are equal before the law. Consequently, they are entitled,

69 On grounds of race, sex, disability, sexual orientation, age, and religion or belief. '" Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/i6. 71 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ 1180/22. 72 Council Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L 204/23. 73 Mark Bell, 'A Patchwork of Protection: The New Anti-discrimination Law Framework' (2004) 67 MLR465.

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without discrimination, to equal protection of the law'. The African Charter of Human and Peoples' Rights contains further strong guarantees to equality and non-discrimination. Important amongst these are Article 3, which stipulates that ' [e]very individual shall be equal before the law ... Every individual shall be entitled to equal protection of the law', and Article 2, which guarantees the Charter rights without distinction of any kind. The structural importance of the principle of equality is visible if one unravels the various interwoven strands of the human rights fabric to see how equality is employed to frame and substantiate human rights standards. As is clear from the human rights treaty preambles equality is a core reason why human rights standards exist. Furthermore, it serves both a procedural function, by prescribing how human rights must be applied, and a substantive function, by setting out the scope and nature of human rights obligations. Reflecting on its multidimensional role, the Inter-American Court of Human Rights has placed the principle within the highest order of human rights guarantees, stating: the principle ofequality before the law, equal protection before the law and non-discrimination belongs to jus cogens, because the whole legal structure of national and international public order rests on it and it is a fundamental principle that permeates all laws. 74

4. THE SCOPE AND INTERPRETATION OF THE PRINCIPLE OF EQUALITY IN CONTEMPORARY INTERNATIONAL HUMAN RIGHTS LAW Having examined equality in human rights law architecture, the next step is to consider how it is interpreted and applied by international human rights bodies. At this point it is worth noting that international law has rarely defined or interpreted a right to equality per se. More frequently, the interpretation pertaining to the principle of equality has focused on the right to non-discrimination or equal treatment and the core components of: (i) the definition and scope of discrimination and equal treatment and (ii) the scope of permissible measures to accelerate de facto equality

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Juridical Condition and Rights of the Undocumented Migrants (n 34) para 101.

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4.1 The definition and scope of discrimination and equal

treatment Among the core international human rights treaties, only CERD, CEDAW, and CRPD define discrimination. 75 Within these definitions there is a common reference to 'purpose or effect' which implies that the definition includes indirect as well as direct forms of discrimination. 76 The reference to 'effect' also suggests that discrimination need not be intentional. Harassment and instruction to discriminate are also forms of prohibited discrimination under international and regional human rights law. Although other international and regional human rights instruments have not defined discrimination, treaty bodies' decisions and comments have defined prohibited discrimination. In General Comment No 18, the UN Human Rights Committee (UNHRC) set out a definition which largely mirrors the definition contained in CERD, CEDAW, and CRPD. 77 It has also set out that under Article 26, '[a] differentiation which is compatible with the provisions of the Covenant and is based on objective and reasonable grounds does not amount to prohibited discrimination'.78 This definition accords with the Article 14 jurisprudence of the ECHR, wherein discrimination 'means treating differently, without an objective and reasonable justification, persons in relevantly similar situations'. 79 Some key questions for establishing discrimination, therefore, appear to be: (i) has there been a difference in treatment, (ii) is the difference in treatment objectively and reasonably justifiable, and (iii) are persons in comparable situations? In practice, a factual approach is often taken to determine what constitutes both difference in treatment and an objective and reasonable justification. 80 It is also worth noting that a difference in treatment on grounds such as race, sex, disability, and nationality, is typically subject to strict scrutiny and requires 'very weighty reasons' to comply with the objective and reasonable justification component of the test for discrimination. 81 As practices of discrimination evolve, legal action has shed light on the complex ways inequality and discrimination appear in society. In the EU case of Coleman v Attridge Law, for example, the Court of Justice of the European Union held that CERD, Art 1(1); CEDAW, Art 1; CRPD, Art 2. UNCESCR (n 60) para 10 affirms that indirect forms of differential treatment can amount to discrimination. Regionally, indirect discrimination is prohibited under the ECHR, see DH and Others 77 UNCHR 'General Comment No 18' (n 57) para 7. v Czech Republic para 184. 78 See Zwaan-de Vries v Netherlands, para 13. 79 See Willis v UK, para 48. 80 In Broeks v Netherlands, Zwaan-de Vries (n 78), Pauger v Austria, and Vos v Netherlands, it was held that distinctions on the grounds of sex in social security laws had no reasonable or objective aims and thus violated Article 26 of the ICCPR. In Young v Australia, the UNHRC held that the state had failed to show how the denial of benefits to same-sex partners, while granting the same benefits to unmarried heterosexual partners, was based on 'reasonable and objective' criteria. 81 For a good overview of the strict scrutiny principle, see Dagmar Schiek, Lisa Waddington, and Mark Bell (eds) Cases, Materials and Text on National, Supranational and International Non-Discrimination Law (Hart 2007 ). 75

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the scope of direct discrimination within Council Directive 2000/78/EC prohibited discrimination by association. To address discrimination as a human rights issue understanding the implications of such forms of discrimination is extremely important. People responsible for caring, for example, for elderly, disabled, or ill relatives or friends, often experience a special vulnerability that results in a cycle of discrimination and inequality. Research has shown that this vulnerability and subsequent inequality and discrimination are acutely felt in developing countries. 82 The concept of multiple discrimination, that is, discrimination based on more than one of a person's characteristics, 83 has also been subject to much international scrutiny. The Durban Declaration and Plan of Action, as well as special procedures of the Human Rights Council, have called on states to combat multiple discrimination. 84 In Teixeira v Brazil, it was recently held that a failure to provide necessary and emergency care to the applicant constituted discrimination on the multiple grounds of her sex, her status as a woman of African descent, and her socio-economic background, which ran contrary to Brazil's obligations under CEDAW Human rights bodies thus are increasingly taking an expansive approach to the definition of discrimination. Some treaty bodies seem prepared to match the emergence of new forms of discrimination with strong legal safeguards. In this process, the principle of equality is a key, as it enables bodies to assess the human rights issues through an equality paradigm and thus cut straight to the core of the concern. At the same time, it provides bodies with practical justification for declaring that these emerging forms of discrimination contravene basic human rights.

4.2 Permitted measures to accelerate and achieve defacto equality In most human rights systems, not all differential treatment will amount to discrimination. Instead, they accept that measures may be necessary to achieve full and effective equality. For instance, under the ECHR '[t]he right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to 82 Ann Elwan, 'Poverty and Disability: A Survey of the Literature' (18 December 1999) WDR Background Paper 2000/2001 accessed 10 March 2012. 83 For an analysis of this phenomenon, see Sarah Hannett, 'Equality at the Intersections: The Legislative and Judicial Failure to Tackle Multiple Discrimination' (2003) 23 OJLS 65. 34 See Durban Declaration and Programme of Action, paras 2 or 69; UNHRC 'Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development-Report of the Independent Expert on Minority Issues, Gay McDougall' (27 February 2009) UN Doc A/HRC/io/11/Add.2.

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treat differently persons whose situations are significantly different'. 85 'Reasonable accommodation', the denial of which CRPD, Article 2 defines as discrimination, is another example of permitted positive action measures. Within international and regional human rights systems, a growing consensus is developing that legislative and policy measures are sometimes necessary to accelerate progress towards equality for certain groups. Positive action measures are usually presented as social and economic rights mechanisms that aim to redistribute resources or wealth, but viewing positive action solely in these terms dampens its potential to redress structural inequalities that arise from the denial of civil and political opportunities. Hence, political shortlists for women and minority groups are sometimes proposed to increase their political representation and their status within politics. 86 The former UN Sub-Commission on the Promotion and Protection of Human Rights explained that justifications for positive action are not limited to economic redistribution and include remedying historical injustices, remedying social discrimination, creating diversity or proportional group representation, pre-empting social unrest, and implementing means for nation building. 87 Human rights bodies have called for measures to address cases where systemic disadvantage has affected particular groups. The UN Human Rights Committee, for example, has called for the adoption of positive action measures, such as quotas, to improve the situation of particularly disadvantaged groups. 88 Similarly, the ICESCR Committee has stated that '[s)tates parties may be, and in some cases are, under an obligation to adopt special measures to attenuate or suppress conditions that perpetuate discrimination'. 89 The Committee clarified that these measures are legitimate as long as they represent a reasonable, objective, and proportionate means of redressing de facto discrimination. Such measures will ordinarily be temporary, but they can be permanent in exceptional cases, such as in making reasonable accommodations for people with sensory impairments.90 Likewise, CERD may require positive action measures be taken. In General Recommendation No 32, the CERD Committee set out that the concept of special measures is based on the principle that the Convention requires states, when circumstances warrant, to adopt temporary special measures designed to secure to disadvantaged groups the full and equal

1hlimmenos v Greece, para 44. Commission 'Report on Positive Action Measures' (Directorate-General for Employment and Social Affairs 2005) accessed 14 February 2012. 87 UNCHR, 'Prevention of Discrimination and Protection ofindigenous Peoples and Minorities: The Concept and Practice of Affirmative Action' (26 June 2001) UN Doc E/CN.4/Sub.2/2001/15. 88 See eg UNHRC, 'Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: International Covenant on Civil and Political Rights: Concluding Observations of the Human Rights Committee: Japan' (18 December 2008) UN Doc CCPR/C/JPN/CO/5, para 12. 89 UNCESCR (n 60) para 9. ' 0 UNCESCR (n 60) para 9. 85

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enjoyment of human rights and fundamental freedoms. 91 Furthermore, the General Recommendation makes it plain that special measures are not an 'exception to the principle of non-discrimination but are integral to its meaning and essential to the Convention project of ... advancing ... effective equality'. 92 In sum, reasonable, objective and proportionate positive or special measures are an integral part of the principle of equality and must be applied temporarily or (exceptionally) permanently, when it is necessary to achieve equality. Regionally, the Inter-American Court, the European Court of Human Rights, and the European Committee on Social Rights have all confirmed that a state's failure to implement positive action measures can contravene their equality and non-discrimination obligations. 93 In spite of their legitimacy in international human rights law, positive action measures remain contentious in many national systems. This is partly due to the idea that they are an affront to individual autonomy and partly because adopting such policies can reduce the advantages that those in the dominant group enjoy. In light of the tension behind such measures, it is perhaps unsurprising that EU anti-discrimination law adopts a more cautious approach. Under EU law, in cases where there is a need for a tiebreaker, an employer can favour employing a woman over a man if there is no reason which would favour the man's appointment, 94 but an employer cannot automatically and unconditionally favour the employment of a woman in the recruitment process. 95 Research indicates that in some legal systems such positive action measures have been successfully implemented, without resorting to contentious measures such as quotas, through agreements between state regulators and private enterprises. The agreements outline procedural and substantive requirements that a private enterprise must meet to accelerate the position of disadvantaged groups. 96 Thus it seems human rights law and policy has begun to approach such political contexts with more nuanced solutions in order to achieve effective results. Equality also has a pivotal role in the practical application of human rights. It has consistently underscored justifications for the decisions of human rights bodies, the defence of human rights victims, and the basis for holding states to account for human rights violations. Equality's dual functions as a foundation for human rights

91 CERD 'General Recommendation No 32, The Meaning and Scope of Special Measures in the International Convention on the Elimination of All Forms Racial Discrimination' (24 September 2009) UN Doc CERD/C/GC/32, para n. 92 CERD, General Recommendation No 32 (n 91) para 20. 93 See Juridical Condition and Rights of the Undocumented Migrants (n 34) in respect of the Inter-American system; Glor v Switzerland in respect to the ECHR; and Collective Complaint no. 51/2008 European Roma Rights Centre (ERRC) v France (2009) with respect to the European 94 Badeck and others. Committee on Social Rights. 95 Kalanke v Freie Hansestadt Bremen and Marschall v Land Nordrhein Westfalen. 96 Christopher McCrudden and others, 'Affirmative Action without Quotas in Northern Ireland' (2010) 4 The Equal Rights Rev 7-

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norms and a guide for their implementation and application continue to be at the core of contemporary human rights law.

5. A

RIGHT TO EQUALITY IN INTERNATIONAL HUMAN RIGHTS LAW?

The steady development of the principle of equality and its influence on international and regional human rights law have led some to suggest that an independent right to equality exists in international human rights law. 97 As noted above, international human rights treaties do not provide for a right to equality per se, but examining the interpretation of human rights norms indicates that such a right is alive when human rights bodies discuss non-discrimination or equality before the law. Has international human rights jurisprudence thus fashioned a substantive right to equality in all but name? Answering this question first demands consideration of what is meant by a substantive right to equality. Perhaps the closest approximation of an agreed definition of a right to equality is contained in the Declaration of Principles on Equality. Principle 1 states: The right to equality is the right of all human beings to be equal in dignity, to be treated with respect and consideration and to participate on an equal basis with others in any area of economic, social, political, cultural or civil life. All human beings are equal before the law and have the right to eq1.cal protection and benefit of the law. 98

Holistic consideration of international human rights jurisprudence leads to a strong presumption that a right to equality exists. Many of the characteristics that would be associated with this right, such as promoting equal respect and giving it autonomous and universal application, have previously been read into key elements of international human rights law. As noted in Section 4 above, human rights treaty bodies, courts, and more recently treaties, have adopted an expansive definition of discrimination which includes, for example, a failure to take positive action measures and (under the CRPD) the denial ofreasonable accommodation for persons with disabilities. 99 These examples demonstrate a shift from the formal conceptions of equality towards the substantive conception of equality. The obligation to take positive action measures indicates that a principal aim of international human rights law is rooted in substantive equality. Therefore, while human rights treaty law does not provide for a right to equality per se, in practice the human

97

9'

See The Equal Rights Trust, Declaration of Principles on Equality (London 2008). 99 CRPD (n 66), Art 2. The Equal Rights Trust (n 97) Principle 1.

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rights bodies' interpretations of these norms suggest that the right has developed organically. Several benefits may result from accepting the existence of a right to equality. First, such recognition reinforces the existing jurisprudence of many international human rights bodies that a significant purpose of human rights is to help those who are most vulnerable and disadvantaged. Inequality is often the seed of long term, systematic human rights violations. Social, economic, and political inequality is a feeding ground for mistrust, anger, hatred, exclusion, and violence that cultivates prejudice, separation, and stigma among close communities and individuals, as occurred for example, in Sri Lanka, Northern Ireland, and the former Yugoslavia. A right to equality aimed at addressing the position of the vulnerable and the disadvantaged benefits not only the individual as a right holder, but also broader society, by nurturing social harmony through seeking improvements in democratic institutions. Second, equality as a substantive right fits more logically with the development of current jurisprudence. It enables human rights practitioners to move away from viewing equality and non-discrimination provisions as largely last resort procedural provisions. Instead, the provisions indicate something greater about the purpose and function of human rights law, setting out how a state must substantively treat everyone who is subject to its jurisdiction. Third, the substantive model of equality provides a sophisticated mechanism to analyse potential human rights violations and to evaluate the justifications offered for differential treatment and status. A right to equality based on equal respect or consideration for the individual will be more representative for those who have experienced inequality or discrimination than formal notions of equality that are largely based on a comparative rationalist approach. In some cases, the latter approach can disadvantage the victim by requiring them to explain how their treatment has been more adverse than another person's treatment because of a characteristic that the other does not have. Basing the analysis on equal respect, or consideration, allows the justice system to assess whether adverse treatment because of a characteristic is inherently wrong, irrespective of how another person is treated. An added benefit is that substantive equality may transcend the historical polemics that exist between civil, political, economic, and social rights, promoting the interconnectedness and universality of all human rights. Emerging from the jurisprudence are techniques and concepts that provide important bridges between traditional classifications of rights. Political distinctions within human rights often collapse when considered through the lens of equality. Finally, in complex cases of national importance, equality arguments often bring added, even decisive, weight to the legal debate. For example, it has been central to ending the criminalization of same sex relationships in countries such as India; 100 in other jurisdictions, such as 100

Naz Foundation v Government of NCT of Delhi.

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the United Kingdom, it has been crucial for defending the right to liberty. 101 In this way, equality arguments may help to depoliticize issues, or at least to make them more politically digestible. In contentious cases, the principle of equality is there to remind courts that at the heart of the case is a victim wishing to live an ordinary life with the equal concern and consideration that is afforded to others.

6. CONCLUDING REMARKS This chapter has addressed the manner in which equality operates as a structural principle in contemporary human rights law. As a basic principle of democracy, equality dates back at least to classical Greece. Today, equality still infuses modern ideas about democracy, the rule oflaw, and the role of individuals in society. While notions of equality sometimes differ due to politkal disagreement about which conception of equality to apply to a particular situation, most contemporary constitutions agree that a right to equality is a necessary ingredient for democracy. This chapter has also shown that the principle of equality has two main structural functions. First, it is a foundation upon which the architecture of human rights has been designed. The principle of equality provides justification for the adoption of human rights standards, gives instruction about how human rights norms must be applied, and is applied directly through its transposition into substantive rights, such as non-discrimination and equality before the law. Viewing the impact of the principle of equality from this perspective demonstrates how it is instrumental in reinforcing other fundamental human rights principles, such as universality. Second, in addition to this, equality serves an immensely important interpretative and guidance function for policy-makers, courts, and human rights bodies charged with applying and developing human rights standards. Recent human rights developments, in particular the adoption of the CRPD, demonstrate that equality continues to underpin the way forward for guaranteeing and protecting human rights. It is not merely as a procedural mechanism that equality performs this task, but more significantly as a genuine normative instrument that illustrates why human rights standards are necessary and how they ought to be interpreted. Without the principle of equality's guiding hand, the landscape of human rights would look fundamentally different, and it is likely that human rights standards would be poorer in both content and form.

101

Belmarsh case (n 3).

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FURTHER READING Abernethy GL, Introduction to the Idea of Equality: An Anthology (John Knox Press 1959) Clifford J, 'Locating Equality: from Historical Philosophical Thought to Modern Legal Norms' (2008) 1 The Equal Rights Rev 11 Dashwood A and O'Leary S (eds), The Principle of Equal Treatment in EC Law (Sweet & Ma:xwell 1997) McCrudden C, 'The New Concept of Equality' (2003) 4 ERA Forum 9 Shelton D, 'Prohibited Discrimination in International Human Rights Law' in Aristotle Constantinides and Nikos Zaikos (eds), The Diversity of International Law: Essays in Honour of Professor Kalliopi K Koufa (Martinus Nijholf 2009)

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constitute the dominant single theme of the Covenant. Equality is of course implied in that the rights recognized by the Covenant are rights of all human beings equally, and the various provisions apply to "all persons," "everyone," "every human being," "no one." The preamble proclaims "the equal and inalienable rights of all members of the human family." By Article 2(1) a state undertakes to respect and ensure the rights recognized by the Covenant "to all individuals within its territory and subject to its jurisdiction . . . 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 3 provides for "the equal right of men and women" to enjoy all the rights set forth in the Covenant. When a state derogates from rights in time of public emergency (Article 4(1)), the measures taken may "not involve discrimination" on forbidden grounds. Article 26 proclaims equality before the law and requires the equal protection of the law without discrimination. The law must prohibit and provide effective protection against discrimination (Article 26), and any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence must be prohibited (Article 20). Several of the provisions protecting particular rights include explicit prohibitions of discrimination in regard to those rights. Neither "equality" nor "nondiscrimination," however, is self-defining and beyond the need for interpretation, and none of these admonitions in the Covenant provides guidance as to the scope and implication of these norms. In fact, the content and reach of the principles of equal-

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All views expressed in this essay are those of the author in his personal capacity.

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ity and nondiscrimination are not agreed; in the national law of several countries, similar constituti.onal provisions have spawned an extensive and complex jurisprudence. There is also debate as to the meaning of some of the grounds for discrimination that are expressly precluded by different provisions in the Covenant. While the Covenant does not define the relevant terms, there is some evidence of the purpose and intent of the draftsmen in the travaux preparatoires. For the framers of the Covenant, perhaps, the meaning of equality and nondiscrimination went without saying, deriving from its prime place as a fundamental human right and incorporating the guidance provided by the massive literature on equality and nondiscrimination in moral, legal, and political philosophy; in the constitutional and other law of different countries; in human rights jurisprudence generally; and in international law.

Equality and Nondiscrimination as Fundamental Human Rights The inherent dignity and "the equal and inalienable rights of all members of the human family" were recognized in the opening lines of the Universal Declaration of Human Rights as "the foundation of freedom, justice and peace in the world." The claim to equality, said the late Sir Hersch Lauterpacht, "is in a substantial sense the most fundamental of the rights of man. It occupies the first place in most written constitutions. It is the starting point of all other liberties." 1 The bedrock nature of the principles of equality and nondiscrimination in the international law of human rights were admirably brought out in an address by the Head of the Federal Political Department of Switzerland at the opening of the World Conference to Combat Racism and Racial Discrimination on August 14, 1978: Of all human rights, the right to equality is one of the most important. It is linked to the concepts of liberty and justice, and is manifested through the observance of two fundamental and complementary principles of international law. The first of these principles, that "all human beings are born free and equal in dignity and rights," appears in the 1948 Universal Declaration of Human Rights; the second, the principle of nondiscrimination, has been solemnly reaffirmed in Article 1 of the Charter of the United Nations. It is upon those two principles that all the instruments on human rights adopted since 1945 are based. . . . The prohibition of discrimination has become a norm of positive law, as has been recognized by the Inter-

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national Court of Justice in respect of racist practices: To establish . and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter. 2

Religion The principles of equality and nondiscrimination are reflected in the great religious and philosophical systems of the world. One of the tenets of Chinese philosophy provides: "If everyone adopts universal love and if everyone loves others as himself, will there still be those who are not dutiful?" Therefore, let "the whole world adopt universal love." 3 Hindu philosophy teaches that "one who, with equality, sees himself in all beings and all beings within himself . . . attains to the state of selfrule." 4 For Judaism and Christianity, "the common human ancestor in God's 'image' described in Genesis and the fatherhood of God to all men (Malachi 2:10) imply the essential equality of all men, supporting the idea of rights which all enjoy by virtue of their common humanity"; also "thou shalt love thy neighbour as thyself." 5 Islam commands that "he who believes in God, let him act kindly towards his neighbour." 6

Humanitarian Movements The principles of equality and nondiscrimination helped to inspire some of the great humanitarian movements of modern history-including the English, French, American, and Russian declarations on human rights-and the movements for the abolition of slavery and for the protection of minorities. They were amply reflected in various minorities treaties concluded after the end of the First World War. 7 They have also been included in various national constitutions or declarations of human rights. 8

The UN Charter In the period after the Second World War, the principles of equality and nondiscrimination were enshrined, inter alia, in the United Nations Charter (1945), the Universal Declaration of Human Rights (1948), the Charter of the OAS (1948), the American Declaration on the Rights and Duties of Man (1948), the International Law Commission's Draft

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Declaration on the Rights and Duties of States (1949), the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the ILO Convention and Recommendation Concerning Discrimination in Respect of Employment and Occupation (1958), the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the International Covenants on Human Rights (1966), the American Convention on Human Rights (1969), and the UNESCO Declaration on Race and Racial Prejudice (1978).

International Customary Law The principles of equality and nondiscrimination are now widely acknowledged as forming part of international customary law. Some have even argued that at least as regards consistent patterns of gross violation by government and societies, these principles are part of international jus cogens, peremptory norms binding on all as superior law. Support for the view that equality and nondiscrimination are part of international customary law comes from authoritative international instruments such as those cited in the preceding section, authoritative legal institutions such as the International Law Commission, and the International Court of Justice, 9 state practice, including pronouncements by worldwide international conferences, 10 and authoritative publicists. 11 In their pleadings in the South West Africa cases (Ethiopia and Liberia v. South Africa), the governments of Ethiopia and Liberia invoked "a generally accepted international human rights norm of non-discrimination." 12 In the Barcelona Traction case, the International Court of Justice included among the obligations of states erga omnes "the principles and rules concerning the basic rights of the human person including protection from slavery and racial discrimination." 13 In its Advisory Opinion of 1971 on Namibia the International Court of Justice stated that "to establish . . . and to enforce distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin . . . constitutes a denial of fundamental human rights" and "is a flagrant violation of the purposes and principles of the Charter." 14 Article 9 of the UNESCO Declaration on Race and Racial Prejudice, adopted in 1978, reaffirmed that "the principle of the equality in dignity and rights of all human beings and all peoples, irrespective of race, colour and origin, is a generally accepted and recognized principle of international law." 15 The commentary to this provision states that it

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underlined, in forceful terms, the principle that now constitµtes one of the foundations of international law: the equality of all human beings and all peoples. This principle, which was established by the United Nations Charter, has been confirmed and developed by a whole series of instruments adopted under the auspicies of the United Nations and the specialized agencies, and has been applied by the International Court of Justice on many occasions in its latest legal decisions. 16

Articles 2(1), 3, and 26 of the International Covenant on Civil and Political Rights set forth five related principles: the principle of equal enjoyment of rights; the general principle of equality and the corollary principle of equality between men and women; the principle of equality before the law and equality before the courts; the principle of equal protection of the law; and the principle of nondiscrimination. The preparatory works of the Covenant indicate that notwithstanding differences in terminology, the principles of equality and nondiscrimination contained in the International Covenant on Civil and Political Rights were intended to be, in effect, the same principles as those contained in the Charter, the Universal Declaration, and the International Covenant on Economic, Social, and Cultural Rights. The meaning of the concepts of equality and nondiscrimination in all these instruments is to be taken from the modern international law of human rights. Thus, in the Third Committee reference was made "to discrimination in its classical juridical meaning," 17 "to discrimination . . . in international usage." 18 It may therefore be presumed that the meaning of the concepts of equality and nondiscrimination in the modern international law of human rights were incorporated in the Covenant in all their amplitude. If these principles also have the character ofjus cogens, that would be relevant to the permissibility of derogations from or limitations upon them. The status of these principles in international customary law also has bearing on the application and implementation of the Covenant both in the national legal systems of states parties to the Covenant and internationally. If, for example, under the law of a state party, the Covenant is incorporated and may be invoked in national law, an individual may by reference to the Covenant's provisions on equality and nondiscrimination invoke also their meaning in international customary law. States parties to the Covenant, and the Human Rights Committee, may judge a state's compliance with the Covenant by referring to the meaning of the principles of equality and nondiscrimination in international customary law.

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The History of the Principal Articles Article 2(1), the general, comprehensive equality and nondiscrimination clause, and Article 26, providing for equal protection and equality before the law, were initiated in the Commission on Human Rights. Article 3, providing for gender equality, was added in the General Assembly . 19 It was recognized that equality between men and women was already provided for under Article 2(1), but it was decided to include an express provision thereon for emphasis. 20 In regard to Articles 2 and 26 in particular, various concepts were used in the debates without distinction. Thus, one sees references interchangeably to equality, equality before the law, equality before the courts, equal protection of the law, equality of the sexes, nondiscrimination, and nondistinction. This loose use of terminology suggests that one should seek the meaning of these articles in the light of all the relevant factors. Over the time span during which the articles were drafted (1947-1966), moreover, the membership of the UN and of the various organs was transformed and different coalitions emerged. This resulted in some inconsistencies. For instance, in the Third Committee one year, the word "nondistinction" in the International Covenant on Economic, Social, and Cultural Rights was deliberately changed to "nondiscrimination"; the following year, faced with the same issue with respect to the Covenant on Civil and Political Rights, the word "nondistinction" was left intact in Article 2(1). Notwithstanding the holocaust during the Second World War, resulting from racial and ethnic discrimination carried to its terrible extreme, there was hesitancy on the part of some of the metropolitan or great powers to accept the implications of the principles of equality and nondiscrimination; in particular, the application of these principles to economic, social, and cultural rights was strenuously resisted. It is substantially due to a coalition of scholars, nongovernmental organizations, 21 and representatives of enlightened governments that these principles achieved the level of recognition that they did in the Covenant. The rise to independence of new states also significantly influenced the final texts. The three articles were largely developed during the same period as the provisions on nondiscrimination in the Universal Declaration; the International Covenant on Economic, Social, and Cultural Rights; and the International Declaration and the International Convention on the Elimination of All Forms of Racial Discrimination. There is, therefore, a definite interconnection among the nondiscrimination provisions in

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these instruments, and the meaning of the provisions in any of these instruments draws on the related provisions of the other instruments. 22

Positive and Negative Statement of the Same Principle Equality and nondiscrimination may be seen as affirmative and negative statements of the same principle. Like the Charter and the Universal Declaration, the Covenant refers to "the equal and inalienable rights of all members of the human family," declaring the entitlement of all human beings to all human rights. That is reinforced by repeated references in particular articles to "all human beings," "everyone," "no one." The positive affirmation of the rights of all human beings is reinforced by Article 3, which is not couched as a prohibition on discrimination on account of gender but as an affirmation of the entitlement of women as well as men to human rights generally. Equality is decreed also in the requirement of equality before the law and equal protection of the laws, in equal access to public service and suffrage. In adding nondiscrimination clauses to supplement the affirmative mandate of equality, the Covenant was following the UN Charter and the Universal Declaration. In all these instruments a nondiscrimination clause was added not merely for emphasis, but also from an abundance of caution. Nondiscrimination may indeed be implied in mandates of equality. But mandates of equality do not imply absolute equality without any distinction. Equality, it has sometimes been said, means equal treatment for those equally situated and, indeed, equal treatment for unequals is itself a form of inequality. The law, moreover, rarely applies to all situations and involves selections and classifications among objects based on criteria deemed to be relevant. The general requirements of equality or equal protection of the laws, then, does not mean that a state cannot select among objects for regulation or draw distinctions among them. The nondiscrimination clauses are designed to make clear that certain factors are unacceptable as grounds for distinction. Thus Article 2(1) provides that as regards Covenant rights generally, they must be ensured to all 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." The state must also guarantee to all persons equal and effective protection against discrimination "on any ground such as" these same listed grounds. Presumably, however, despite the principle of equality, some rights may be denied or discrimination practiced on other grounds, for example, for convic-

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tion for crime. Some possible grounds for distinction, moreover, are not mentioned, and some rights clearly imply that exclusions or distinctions are permitted on grounds of citizenship or age, for example, as regards voting; or distinctions between aliens and nationals for purposes of the right to enter a country.

Equality An Independent Right Although equality is implied in the fact that all human beings have the same human rights, the emphasis on equality indicates that it is a right additional to and independent of other specific enumerated rights. Equality was defined as an independent right in a memorandum submitted by the Secretary-General of the United Nations to the SubCommission on Prevention of Discrimination and Protection of Minorities in 1949, one of the documents contributing to the common pool of ideas which influenced the drafting of the Covenant. The memorandum declared that the term "equality" in the Universal Declaration of Human Rights referred to moral and juridical equality, equality in dignity, formal equality in rights, and equality of opportunity, but did not imply material equality in result or in fact; it did not imply that all individuals must enjoy the benefits which those rights are designed to ensure. That is because the principle of equality as a human right does not exclude distinctions based on differences of two kinds, which are generally considered admissible and justified: (a) differentiation based on character and conduct imputable to the individual for which he may be properly held responsible (examples are industriousness, idleness, carefulness, carelessness, decency, indecency, merit, demerit, delinquency, lawfulness, etc.); and (b) differentiation based on individual qualities, which in spite of not being qualities for which the individual can be held responsible, are relevant to social values and may be taken into account (examples are physical and mental capacities, talent, etc.). On the other hand, moral and juridical equality exclude any differentiation based on grounds which have no relevance to merit or social value and should not be considered as having any social or legal meaning, whether they are innate, such as color, race, and sex; or social generic categories, such as language, political or other opinions, national or social origin, property, birth or other status. During the drafting of the Covenants it was generally recognized that

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the concept of equality referred to both de jure and de facto equality. 23 This was addressed by the representative of the Ukrainian SSR in regard to the nondiscrimination provisions of the International Covenant on Economic, Social, and Cultural Rights. The Committee, he noted, was "elaborating principles of de jure equality; from those principles would arise the de facto equalization of human rights. It would be wrong to confuse those two concepts . . . equality of rights went further than mere nondiscrimination; it implied the existence of positive rights in all the spheres dealt with in the draft Covenant." 24 Similarly, during the consideration of Article 3 of the Covenant on Civil and Political Rights, it was stressed that the "article did not merely state the principle of equality but enjoined States to make equality an effective reality, . . . and that every effort should be made to do away with all prejudice in that field . . . . The articles enshrined a principle of elementary justice, namely, equality of rights in a world where, even in the most advanced countries, women were still denied many rights." 25

Equality before the Law and Equal Protection of the Law As submitted by the Commission on Human Rights to the General Assembly, the draft of what is now Article 26 stated: "All persons are equal before the law. 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 first clause, affirming that "all persons are equal before the law," follows Article 7 of the Universal Declaration of Human Rights, and the Commission considered that it was important to restate that principle in the Covenant. In reply to objections that this clause might be held to mean that the law should be the same for everyone and that it might preclude the imposition of reasonable legal disabilities upon certain categories of individuals such as minors or persons of unsound mind, it was explained that the provision was intended to ensure equality, not identity of treatment, and would not preclude reasonable differentiations between individuals or groups of individuals on grounds that were relevant and material. 26 When Article 26 was considered in the Third Committee, there was an important debate on a proposal to insert the words "in this respect" in the second sentence of the article. Both supporters and opponents of this proposal recognized that the insertion of these words could have

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the effect of limiting the reference to nondiscrimination in the second sentence to the content of the first sentence, i.e., discrimination on the grounds indicated would be prohibited only as applied to the enjoyment of equality before the law, i.e., in court. At the same time as the words "in this respect" were inserted in the second sentence, however, the first sentence, which had referred merely to equality before the law, was amended to state that all persons were entitled without any discrimination to the equal protection of the law (as provided in Article 7 of the Universal Declaration). With this clear affirmation of the principle of nondiscrimination, the addition of the words "in this respect" in the second sentence referred to both clauses of the first sentence and in fact restored the general nondiscrimination principle. 27 A state party must prohibit and guarantee effective protection against discrimination on the forbidden grounds, not only in court but wherever it detracts from the equal protection of the laws. 28 The practice in the Human Rights Committee supports the broad interpretation of Article 26. During the examination of the report of the United Kingdom, it was pointed out that the authors of the report had used Dicey's concept of equality before the law as part of "the rule oflaw," that is, equality before the courts. The discussion of the report supported the view that while equality before the courts was indeed included in Article 26 and was expressly required by Article 14 of the Covenant, Article 26 referred not only to equality before the courts but also to the general "egalitarian" concept of "equal protection of the law" in the sense of nondiscrimination. Thus, Article 26 is not restrictive but rather has the wider egalitarian meaning in the accepted postSecond World War definition which prohibits all discrimination. 29 Similarly, during the consideration of a report of Sweden it was said that "Article 26 of the Covenant referred not merely to the, as it were, negative or passive aspect of the prevention of discrimination through guarantees of equality before the law-an aspect already covered by Article 14 of the Covenant-but also to the positive aspect of 'active protection against discrimination' on the various grounds enumerated. • . . " 30 The representative of the government of Sweden replied that he "agreed that Article 26 . . . called for positive action for the elimination of discrimination, and not merely passive measures of prevention." 31 In 1970, the Sub-Commission on Prevention of Discrimination and Protection of Minorities adopted Principles of Equality in the Administration of Justice which may be relevant in interpreting the scope of the equality before the law and equal protection of the law provided in

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the Covenant. These include nondiscrimination on the grounds indicated in "equal access to the judiciary and the legal profession" and in the enjoyment of the basic elements of a fair, prompt, public trial before a competent, independent, impartial tribunal, with a right to appeal. 32

Equal Enjoyment of Enumerated Rights Article 2 of the Covenant requires states parties to respect and to ensure "the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex," etc. Unlike Article 26, this article does not forbid distinction or discrimination generally, but only distinctions and discriminations in the enjoyment of the rights recognized in the Covenant. It would not, then, forbid discrimination in the enjoyment of benefits that are not rights recognized by the Covenant. But since one of the rights recognized by the Covenant is the equal protection of the laws (Article 26), distinctions forbidden by that Article are also violations of Article 2(1). Discrimination in the enjoyment of any benefit-say a tax rebate-that constituted a denial of equal protection of the laws would be a violation of Article 26, and presumably also of Article 2(1). Discrimination in the enjoyment of a particular right in the Covenant would be a violation of Article 2(1) and perhaps of Article 26 as well, even if the distinction did not involve a deprivation and violation of the particular substantive right. Thus, for example, a law setting a reasonable age for marriage does not violate Article 23(2). But setting a different (though also reasonable) age for marriage for members of a particular race or religion would violate Article 2(1) (and probably Article 26), even if did not violate Article 23. Article 2(1) requires that the enjoyment of rights be respected "without distinction of any kind, such as race, colour, sex," etc. The clear implication is that the grounds enumerated are not exclusive and otp.er grounds for distinction are also barred. But the grounds barred are those like race, colour, etc., "or other status." Even some "status" may be a permissible ground for denial of rights if it is relevant, for example being underage, mentally incompetent, and for some specified purposes, alienage. The Covenant does not forbid deprivation or limitation of rights for misconduct, for example upon conviction for crime. The preparatory works do not address these or other issues that may arise, and it will be up to the Human Rights Committee to provide guidance through practice. Some guidance is provided by the application of the principle of nondiscrimination in Article 14 of the European

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Convention on Human Rights. Article 14 provides that "the enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground. . . . " 33 The practice of the European Commission and Court of Human Rights indicates, first, that the principle has been held to be guaranteed only in relation to the rights and freedoms set forth in the Convention. 34 Second, it has been applied subject to a "margin of appreciation." 35 Third, in the Sunday Times case (1979), the European Court of Human Rights reaffirmed that "according to the Court's established case-law, Article 14 safeguards individuals, or groups of individuals, placed in comparable situations, from all discrimination in the enjoyment of the rights and freedoms set forth in the other normative provisions of the Convention and Protocols." 36 However, as held earlier in the Belgian Linguistic cases, Article 14 may be violated by discrimination in the enjoyment of a right under the Convention even if there is no violation of the article of the Convention recognizing that right. 37

Nondiscrimination In addition to the principles of equality and equal protection, the Covenant prohibits discrimination on particular grounds. Article 2 prohibits discrimination on forbidden grounds in respecting or ensuring the rights recognized by the Covenant. Article 26 forbids discrimination on the same grounds in respect of equality before the law and the equal protection of the law. Discrimination on forbidden grounds is expressly prohibited also in the enjoyment of particular rights, e.g., the rights of children (Article 18). Article 2 forbids discrimination in the enjoyment of the rights of the Covenant. But Article 26 forbids discrimination with respect to the equal protection of the laws generally. It was argued that such a nondiscrimination clause was unnecessary in view of the general clause in Article 2, which would apply to Article 26 as well as to other rights. Some urged that even the most enlightened government might find it difficult to accept a general nondiscrimination clause applicable to rights, benefits, and laws generally (not merely to rights recognized in the Covenant). A general nondiscrimination clause might forbid also the distinctions all states make between citizens and aliens. The proposed clause might apply also to private discrimination in personal or social relationships which are not, and should not be, within the realm of law. On the other hand, others maintained that it was not enough to

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affirm that all were equal before the law; the article should also lay down a definite principle that there should be no discrimination on any ground such as race, colour, sex, etc. Freedom from discrimination should be established in the Covenant as an independent additional right of general applicability, not merely as a principle governing only the enjoyment of the rights recognized in the Covenant. The latter view eventually prevailed. 38

Discrimination versus Distinction During the drafting of the covenants, the question arose whether the word "discrimination" or "distinction" should be used. In the end both words were used interchangeably, even within the same Covenant. During the consideration of Article 26 of the Covenant on Civil and Political Rights in the Third Committee in 1961, differences between "discrimination" and "distinction" were stressed by some representatives. The representative of Italy preferred the word "discrimination" because "there were cases in which the law was justified in making distinctions between individuals or groups, but the purpose of the article was to prohibit discrimination, in the sense of unfavorable and odious distinctions which lacked any objective or reasonable basis." 39 The following year, during the drafting of Article 2(1) of the International Covenant on Economic, Social, and Cultural Rights, the Italian, Argentinian, and Mexican delegations moved for an amendment which would replace the word "distinction" with the word "discrimination" on the grounds, inter alia, that "some distinction might be justifiedfor example, preferential treatment for certain underprivileged groups-and that it was discrimination which should be condemned." Moreover, they added, the term "discrimination" appeared three times in Article 24 of the draft Covenant on Civil and Political Rights which the Committee had adopted at the sixteenth session (1102nd meeting). 40 Some delegations, however, found that the proposal to replace "distinction" with "discrimination" "was questionable on legal grounds." First, the United Nations Charter and the Universal Declaration both employed the word distinction. Secondly, the logical meaning of 'without distinction' . . . was not that States should practice non-discrimination but they should act independently of such distinctions as might exist . . . . To make that point clear, it might even be useful to insert the words 'independently' in the place of 'without.' If the word 'discrimination' was used, in what . . . would be a misinterpretation of the intention of the authors, a State might apply unequal treatment to different groups of people and claim that that did not constitute discrimination but distinct treatment of

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distinct groups. That risk was all the greater as there was no generally adopted legal definition of discrimination. Lastly, 'distinction' was the word used in legislative texts and constitutions, among them the French Constitution, which was often regarded as a model. 41

In the end, however, it was decided to insert the word "discrimination" in the International Covenant on Economic, Social, and Cultural Rights. When the Third Committee considered a similar provision of the International Covenant on Civil and Political Rights the following year, the Italian representative again suggested that Article 2(1) should use the word "discrimination" instead of "distinction." However, the approach of the previous year did not prevail and, in the circumstances, the Italian representative did not insist on his point. As a result, the International Covenant on Economic, Social, and Cultural Rights uses the term "discrimination" and the International Covenant on Civil and Political Rights uses the word "distinction." It is clear from both debates that the drafters intended to include in both covenants the higher level of protection whichever word was used. The protagonists of each word felt that it would give the higher level of protection. 42 It appears clearly from the preparatory works of both covenants, however, that both terms exclude only arbitrary or unjust distinction or discrimination. 43 A memorandum which the Division of Human Rights of the UN Secretariat submitted to the Sub-Commission on Prevention of Discrimination and Protection of Minorities states: "Discrimination implies, essentially, unequal and unfavorable treatment, either by the bestowal of favours or the imposition of burdens. Any of a number of grounds may underlie such unequal treatment. Four of them are mentioned in the Charter-race, sex, language, and religion. The prevention of discrimination is, therefore, the implementation of the principle of equality of treatment." 44 A later memorandum elaborated further: "The following delimitation of the meaning of the term discrimination may be suggested: discrimination includes any conduct based on a distinction made on grounds of natural or social categories, which have no relation either to individual capacities or merits, or to the concrete behaviour of the individual person." 45

Affirmative Action It was accepted during the drafting of both covenants that a prohibition of discrimination or distinction does not preclude positive measures taken in favor of disadvantaged groups. During the consideration

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of Article 26 of the Covenant on Civil and Political Rights in the Third Committee, it was recognized that "the word, 'discrimination' . . . was used . . . in a negative sense only, to mean a distinction of an unfavourable kind." 46 Similarly, it was said that the word "discrimination" conveyed the idea of a distinction made without any objective basis." 47 The representatives of Chile, Netherlands, and Uruguay pointed out that equality did not mean identity of treatment. 48 During the consideration of the International Covenant on Economic, Social, and Cultural Rights in the Third Committee in 1962, the Indian representative pointed out that the implementation of the principles of nondiscrimination raised certain problems in the case of the particularly backward groups still to be found in many under-developed countries. In his country, the constitution and the laws provided for special measures for the social and cultural betterment of such groups; measures of that kind were essential for the achievement of true social equality in highly heterogeneous societies. He felt certain that the authors of the draft Covenant had not intended to prohibit such measures, which were in fact protective measures. . . . He therefore thought it essential to make it clear that such protective measures would not be construed as discriminatory within the meaning of the paragraph. The Committee might accordingly wish to add to the article an explanatory paragraph reading: "Special measures for the advancement of any socially and educationally backward sections of society shall not be construed as distinctions under this article. Alternatively, the Committee might wish to insert in its report a statement which would make that interpretation clear. . . . 49

The point made by the Indian representative was expressly supported by the representatives of the United Kingdom, Ceylon, the Ukrainian SSR and the United States. However, it was felt that the "difficulty experienced by the Indian representative would best be met by the inclusion of an interpretative statement in the Committee's records, rather than insertion of an additional paragraph in the draft Covenant." 50 When the Third Committee discussed the nondiscrimination provisions of the International Covenant on Civil and Political Rights the following year, the Indian representative raised his point again and suggested that "article 2(1) of the draft Covenant on Civil and Political Rights should be followed by an explanatory paragraph reading: "Special measures for the advancement of any socially and educationally backward sections of society shall not be construed as distinctions under this article.' " He stated that, owing to past treatment

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or historical circumstances, a certain sector of the people had to be given greater privileges and protection only for a certain period of time in order to promote the rights of those people to reestablish their equality and conditions under which there would remain no need for such provisions, and equal opportunities would exist for all. If the Committee did not favor the insertion of that paragraph in the draft Covenant, a passage of similar content should be included in the Committee's report. 51 The Committee again endorsed the point made by the Indian representative. 52 The position adopted by the Third Committee followed that of the World Court, for example, in the Minority Schools in Albania case. 53 In another context, the European Court of Human Rights, referring to the criteria for determining whether a given difference in treatment contravenes Article 14 of the European Convention, stated 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 effects 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: Article 14 is likewide violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realized. 54

In the Human Rights Committee one member noted that "articles 3 and 26 of the Covenant required more than restraint by the State party. They required the adoption of positive measures to prevent discrimination . . . . He did not think that affirmative action in favor of a disadvantaged group constituted reverse discrimination; in fact, it was sometimes essential." 55 Another member agreed that "Article 3 . . . clearly called for affirmative action, including social, economic and admm1strative measures." 56 The representative of the government of Sweden, to whom these remarks were addressed, expressed his assent. 57

Discrimination by Private Individuals Article 26 requires state parties to enact laws to prohibit, and to guarantee equal and effective protection against, discrimination on the grounds indicated. Clearly, the law must prohibit and prevent discrimination by state officials, and perhaps by private individuals who interfere with equality before the law, with the equal protection of the laws

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including equal access to public accommodations. 58 The extent to which the state must prohibit private discrimination in other respects has been debated. An early memorandum by the UN Secretariat recognized that there is another class of discrimination which consists in unfavourable treatment in social relations only, but not in denying legal rights to any persons. It is clear that forms of discrimination which deny legal rights may and should be fought by legal measures, while those which comprise merely social treatment must chiefly be fought by education and by other social measures. 59

In the Human Rights Committee in 1979 a member, while agreeing that in some problem areas the private citizen should be protected not only against discrimination or interference by the State but also against private discrimination, "wondered, however, whether and to what extent such an obligation derived from Article 26." 60 In reply, it was observed that Article 26, like Article 2(1): prohibited discrimination on any grounds and not just on the grounds of rights recognized in the Covenant. Hence article 26 could not be interpreted as referring only to public acts. It must cover the internal system of a country and the authorities who decided who could work, occupy land and so forth. If the State owned all housing and was the sole employer, then its provisions applied to the State. In a different system, however, with private housing and numerous private employers, it was the latter who must be prevented from practising discrimination. 61

Discrimination by private individuals was discussed during the consideration of Article 26 in the Third Committee. It was admitted that "some types of individual discrimination were a matter of legitimate personal choice," 62 and it was suggested that "discrimination in private and social relationships . . . did not come under the law." 63 As against such legitimate "preferences of individuals in their private lives" 64 however, it was strongly denied that "discriminatory practices in matters of everyday life such as housing, restaurants, transport and access to beaches . . . were within the realm of private relationships and could not therefore be the subject of legislation. . . . " 65 The law, it was recognized, "could ensure equal treatment, equal rights and equal obligations as a citizen for every person." 66 It may be concluded that certain types of discrimination by individuals, other than in personal and social relationships, would violate the

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guarantees of the Covenant and that a state party is under an obligation to take measures against such forms of discrimination. 67 In addition, private advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence must be prohibited by law under Article 20(2).

Distinctions between Citizens and Aliens The rights recognized by the Covenant are human rights, not merely citizen's rights. In general they apply to "every human being" "everyone," "all persons." A suggestion to replace "persons" in Article 2(1) by "nationals" or "citizens" was not pressed. 68 During the consideration of Article 26 in the Commission on Human Rights, fear was expressed that the prohibition of discrimination on grounds of national origin could mean the abolition of all control over foreigners. Others replied that "the application of the principle of nondiscrimination had to be considered in the light of the other provisions of the Covenant. . . . A non-discrimination clause should not, therefore, be construed as prohibiting measures to control aliens and their enterprises." 69 This was also the apparently uncontested view in the Third Committee. 70 As was pointed out by the Permanent Court of International Justice, however, "the admission of foreigners to the territory of a State is a question which is not necessarily connected with the legal status of persons within its territory." 71 It was wisely cautioned in the Third Committee that "discrimination against aliens could be permissible only to the extent strictly necessary." 72 Distinctions in the law generally between aliens and citizens, then, do not deny the former the equal protection of the laws if such discriminations are "strictly necessary." The rights recognized by the Covenant, however, explicitly apply to all persons subject to a state party's jurisdiction, aliens as well as citizens. A distinction between aliens and citizens is permitted only where explicitly provided, e.g., Article 25 (the right to vote and take part in public affairs), and Articles 12( 4) and 13 (right of entry to one's country and freedom from expulsion). 73 It has also been said that there would not be genuine equality for all citizens regardless of national origin if a distinction is made between natural born and naturalized citizens, and that such a distinction would violate the Covenant. 74 The principles of equality and nondiscrimination in the exercise of certain specific rights have been elaborated in more detail in various United Nations studies and in standards adopted by United Nations

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human rights organs on the basis of those studies. Due account needs to be taken of these studies and standards in interpreting and applying the equality and nondiscrimination provisions of the Covenant. 75

Nondiscrimination in the Matter of Political Rights In 1962, the Sub-Commission on Prevention of Discrimination and Protection of Minorities formulated principles on freedom and nondiscrimination in the matter of political rights. 76 Article II states that "every national of a country is entitled within that country to full and equal political rights without distinction of any kind." Articles IV, V, IX, and X require equality and nondiscrimination in respect of the universality and equality of suffrage, and access to elective and nonelective public office. Article XI lists various measures which shall not be considered discriminatory, including reasonable voting qualifications and qualifications for elective or appointive office; a reasonable delay before a naturalized citizen may exercise political rights; and special measures to assure adequate representation for disadvantaged groups or balanced representation for different elements in the population.

Nondiscrimination in Religious Rights and Practices A Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities submitted a set of draft principles on freedom and nondiscrimination in the matter of religious rights and practices. 77 Part 4 provided: Public authorities shall refrain from making any adverse distinctions against, or giving undue preference to, individuals or groups of individuals with respect to the right to freedom of thought, conscience and religion; and shall endeavour to prevent any individual or group of individuals from doing so. In particular: (1) in the event of a conflict between the demands of two or more religions or beliefs, public authorities shall endeavour to find a solution reconciling these demands in a manner such as to ensure the greatest measure of freedom to society as a whole; (2) in the granting of subsidies or exemptions from taxation, no adverse distinction shall be made between, and no undue preference shall be given to, any religion or belief or its followers. However, public authorities shall not be precluded from levying general taxes or from carrying out obligations assumed as a result of arrangements made to compensate a religious organization for property taken over by the State or from contributing funds for the pres-

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ervation of religious structures recognized as monuments of historic or artistic value.

In 1981, the Commission on Human Rights adopted a Draft Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Article II provides: (1) No one shall be subject to discrimination by any State, institution, group of persons or person on grounds of religion or other beliefs. (2) For the purpose of this Declaration, the expression "intolerance and discrimination based on religion or belief" means any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification and impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.

Article III provides: Discrimination between human beings on grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations, and shall be condemned as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and enunciated in detail in the International Covenants relating to human rights, and as an obstacle to friendly and peaceful relations between nations. 78

Nondiscrimination in Education In 1956, the Sub-Commission on Prevention of Discrimination and Protection of Minorities adopted a resolution in which it declared that with a view to eliminating discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, all legislative provisions or administrative measures should be abolished and all practices opposed, which, for the purpose of discriminating against any group: (a) deprive any person or distinct group of persons of access to education at any level or of any type; (b) irrevocably limit any person or distinct group of persons to education of an inferior standard; and (c) establish or maintain separate educational systems or institutions for persons or distinct groups of persons. 79

The Sub-Commission affirmed ten basic principles and recommended to UNESCO to draft an appropriate international instrument for the prevention of discrimination in education, taking these principles into

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account. This recommendation eventually led to the Convention against Discrimination in Education elaborated under the auspices of UNESCO. 80

Discrimination against Persons Born Out of Wedlock On the bases of another study, the Sub-Commission on Prevention of Discrimination and Protection of Minorities adopted a set of general principles on equality and nondiscrimination for persons born out of wedlock. 81 Article 16 states: "Every person born out of wedlock shall enjoy the same political, social, economic and cultural rights as person born in wedlock. The State shall render material and other assistance to children born out of wedlock."

The Rights of Noncitizens The Sub-Commission on Prevention of Discrimination has also proposed a declaration on the rights of noncitizens. Article 4 of the proposed declaration states: Notwithstanding any distinction which a State is entitled to make between its citizens and non-citizens, every non-citizen shall enjoy at least the following rights, always respecting the obligations imposed upon a noncitizen by article 2, and subject to the limitations provided for in article 29 of the Universal Declaration of Human Rights: . . . (ii) The right to equal access to and equal treatment before the tribunals and all other organs administering justice, and to have the free assistance of an interpreter if he cannot understand or speak the language used in court;. . . 82

Principles of Equality and Nondiscrimination m the Human Rights Committee In its first years the Human Rights Committee did not have occasion to take firm positions interpreting the principles of equality and nondiscrimination in Articles 2(1), 3, and 26 of the Covenant. Individual members of the Committee, however, have expressed views on the content of these principles. Thus, it has been stressed that the Covenant provides not merely for formal equality in the eyes of the law or before the courts, but also establishes the equal protection of the law and nondiscrimination in fact. Members of the Committee have frequently re-

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ferred to the principles of equality and nondiscrimination in this general sense. Similarly, it has been said that Articles 2 and 26 require states to take affirmative action when needed to assure equality and nondiscrimination. Members have emphasized the need to have guarantees of equal rights established in the laws of states parties. This issue has arisen particularly regarding nondiscrimination with respect to political opinion. In one instance, where the constitution of a country expressly prohibited discrimination only on the grounds of nationality, race, sex or religion, members of the Committee asked why some of the grounds on which distinction was prohibited under Article 2 of the Covenant, such as language and political or other opinion, were not reflected in the relevant articles of the constitution or the penal code. Committee members have emphatically asserted that distinctions between natural-born and naturalized citizens are in violation of the Covenant. In considering reports of states parties, members of the Committee have posed questions and sought information relating to these articles, including: -the adequacy of national legislation providing for equality and prohibiting discrimination; -the extent to which human rights and fundamental freedoms are enjoyed by "every person" as distinct from "every citizen"; -information on measures taken to prevent discrimination against various groups, such as minorities and indigenous populations; -information on guarantees against discrimination on the grounds of religion; -information as to whether national laws provide guarantees against discrimination on grounds of political or other opinion ("Special importance" has been attached to "nondiscrimination for political reasons, since violation of that principle is liable to affect the whole institutional structure" of a country); 83 -information on legislation and other steps by the government relating to discrimination by private persons. Certain pronouncements by the Committee may be indicative of the interpretations which the Committee may give to Article 2. In its report for 1978, for example, "it was noted that protection of the law did not suffice to prevent discrimination in public life." 84 With reference to the report of a state party, "members expressed concern over the reference to 'illegitimate children' which seemed to constitute discrimination on the basis of birth, and asked what justification there was for the distinctions made and whether the Government had any intention of

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eliminating them." 85 The representative of Czechoslovakia, replying to questions by members of the Committee, stated that "regarding the application of the principle of non-discrimination . . . that principle was not provided for as such in Czechoslovak legislation but that it was applied by labour courts and in civil legal proceedings where it was the essential prerequisite for a fair trial, in the light of the general rule of the Constitution under which all citizens had equal rights and duties." 86 The Committee's report does not indicate, however, any pronouncement, either by the Committee or by individual members, as to whether failure by a state party to provide expressly for the principle of nondiscrimination constituted a violation of the Covenant. Regarding the application of Article 3, pertaining to the equal rights of men and women, a member of the Committee expressed the view that "the words '. . . to ensure the equal rights of men and women . . . ' in Article 3 of the Covenant required that the proclamation of equality should be followed by specific measures to give effect to the principle." 87 Questions asked and information requested of government representatives included: -information on laws and measures providing for equality of men and women; -whether national legislation provided for complete reciprocity in the obligations of spouses; -whether foreign women married to nationals were equal before the law to local women married to foreigners; -whether a country's religious or cultural traditions could impede equality of men and women; -information on the respective rights of men and women regarding the devolution of property, succession, and legal representation; -the system of property rights in marriage; -the right of women to be elected to political office; -information on measures to deal with the problems of working mothers with children; -access of women to employment opportunities and to education, particularly at the higher levels; -equality of wages; -whether any machinery was set up to enforce legislative provisions on equality between men and women. Replying to questions by members of the Committee, the representative of Madagascar "pointed out that it had been found necessary in Madagascar to give a preponderance of prerogatives to the husband in

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order to impart unity and direction to the household; and in that connexion, he explained some of the prevailing local customs which reflected the importance of the role of the wife in his country." 88 The report of the Committee does not indicate any reaction or comments by the Committee or by individual members.

Conclusion The many prov1s1ons of the Covenant reiterating the principles of equality and nondiscrimination, and the history of their drafting, make clear the ready opportunity open to the Human Rights Committee and to others to adopt a progressive and dynamic approach to the interpretation and application of these provisions. The concepts of equality and nondiscrimination contained in the Covenant were used in the sense obtaining in the contemporary international law of human rights. They are not narrow or formalistic but "modernistic" and "egalitarian." In probing the sense and meaning of these provisions, one must keep in mind that the principles of equality and nondiscrimination are now established parts of international customary law, and it would be difficult to deny them the character ofjus cogens, at least as regards consistent patterns of comprehensive violations. One must keep in mind the philosophy of the United Nations, under whose aegis the Covenant came to life, particularly the importance attached to universal equality of all peoples and persons. The relationship between equality, freedom, justice, and peace remains one of the dominant concerns of the United Nations, strengthening the need for a dynamic, progressive approach to the interpretation and application of the principles of equality and nondiscrimination contained in the Covenant.

[3] EQUALITY AND NON-DISCRIMINATION Daniel Moeckli

SUMMARY The international human rights system is founded on the idea that all human beings have the same set of fundamental rights. Accordingly, almost all general human rights instruments guarantee the right to equality and non-discrimination, and several specialized treaties provide protection against particular forms of discrimination. International human rights law prohibits discrimination in treatment (direct discrimination) as well as in outcome (indirect discrimination), regardless of whether it is intended or unintended. Yet it also acknowledges that it may sometimes be justified to classify people: differences in treatment or outcome are permissible as long as they pursue a legitimate aim in a proportionate manner. Indeed, the right to equality may require states to treat people differently in order to overcome historical patterns of disadvantage and achieve real equality.

1 INTRODUCTION The notion that all human beings are equal and therefore deserve to be treated equally has a powerful intuitive appeal. It is one of the central ideals of the Enlightenment and at the heart of liberal theories of the state. 1 The US Declaration of Independence of 1776 famously proclaimed that 'all men are created equal; and today virtually every liberal democratic state guarantees equality in its constitution. The principle of equality and non-discrimination has gained a similarly important status in international law. It is included in the key human rights instruments and the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in 1993, describes it as 'a fundamental rule of international human rights law'. 2 What this fundamental rule entails in practice, however, is difficult to establish. For, of course, no two human beings are equal in the sense that they are identical. We might be able to say that two people are equal in respect of some measurable characteristic ('they both weigh 82 kilograms'), but they will always be different in some other respects (income, political opinion, and so on). In order to apply the principle of equality we first need to define the relevant criterion in respect of which people should be judged to be alike or different. And even when two persons can be said to be alike, it might still be questionable 1

See Chapter I.

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A/CONF.157/23 (25 June 1993) para 15.

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whether they should always be treated equally. Furthermore, we need to decide what kind of equality we seek to achieve. Do we mean by equality that people should be treated identically? Or that they should be given the same opportunities? Or that they should be placed in the same position? Equality can be formulated in different ways, and deciding which concept of equality to use is not a question oflogic but a political choice. In this sense, equality is an 'empty idea' 3 -it does not answer the questions of who are equals and what constitutes equal treatment. External values, not derivable from the concept of equality, are necessary to answer these questions. The challenge, therefore, is to give substance to the abstract notion of equality by translating it into concrete legal formulations that make clear which forms of unequal treatment are legitimate because they are based on morally acceptable criteria and which ones are wrongful. This chapter explains how this challenge has been addressed in international human rights law. Section 2 discusses what, in general terms, equality and non-discrimination can be interpreted to mean. Section 3 gives an overview of the different norms guaranteeing equality and non-discrimination in international human rights law. Section 4 explains the concepts of direct and indirect discrimination. Section 5 considers the requirements for a difference in treatment to be justified under international human rights law. Section 6 sets out the different sorts of obligations that the right to equality imposes on states, in particular their duty to take positive action to ensure everyone can enjoy this right.

2 THE MEANING OF EQUALITY AND NON-DISCRIMINATION The terms 'equality' and 'non-discrimination' have often been used interchangeably and described as the positive and negative statement of the same principle: whereas the maxim of equality requires that equals be treated equally, the prohibition of discrimination precludes differential treatment on unreasonable grounds. 4 In recent years, however, there has been an increased emphasis on the positive formulation. This shift in terminology highlights that equality implies not only a negative obligation not to discriminate, but also a duty to recognize differences between people and to take positive action to achieve real equality. Thus, whereas 'non-discrimination' corresponds to the more limited concept of formal equality, usage of the term 'equality' stresses the need for a more positive approach aimed at substantive equality. 2.1 FORMAL EQUALITY

Formal equality refers to Aristotle's classical maxim according to which equals must be treated equally or, more precisely, likes must be treated alike. 5 This notion of equality as consistency focuses on the process rather than the outcome: equality is achieved if individuals in a comparable situation are treated equally, regardless of the result. The values underpinning ' Westen, 'The Empty Idea ofEquality' (1982) 95 Harvard LR 537. Eg OC-4/84, Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, IACtHR Series A No 4 (1984), Separate Opinion of Rodolfo E Piza, ), para 10 ('it appears clear that the concepts of equality and non-discrimination are reciprocal, like the two faces of one same institution. Equality is the positive face of non-discrimination. Discrimination is the negative face of equality'). ' Aristotle, The Nicomachean Ethics ofAristotle (JM Dent, 1911) Book V3, paras 113la-b. 4

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formal equality are the liberal ideals of state neutrality and individualism, that is, the notion that the state should not give preference to any one group and that people should be treated exclusively on their individual merits and regardless of group membership. However, as noted already, this idea of equality raises the question of when two cases can be said to be alike. It is inevitable that laws and government action classify persons into groups that are treated differently. Under a progressive taxation system, for example, people are treated differently according to their income. In states with a juvenile justice system, people are treated differently according to their age. These distinctions are generally seen as perfectly legitimate because they are based on morally acceptable grounds. Accordingly, at least in common language, the word 'discrimination' also has a positive connotation ('to discriminate between right and wrong'). But which differences in treatment are legitimate and which ones are not? The principle that likes should be treated alike does not, by itself, answer this question. There are a number of other problems with the concept of equality as consistency.6 First, since it is not concerned with the outcome, it does not matter whether two parties are treated equally well or equally badly. Thus, it is compatible with this understanding of equality that a city closes all its swimming pools rather than open its 'whites only' pools to black people ('levelling down'). 7 Second, inconsistent treatment can only be demonstrated if the complainant can find a comparably situated person who has been treated more favourably. Yet for a woman in a low-paid position, for instance, it may be difficult to find a man doing the same job. Third, treating people apparently consistently regardless of their differing backgrounds may have a disparate impact on particular groups. A law which, in the famous words of Anatole France, 'forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread' will in fact entrench inequality. 8 2.2 SUBSTANTIVE EQUALITY Proponents of a substantive conception of equality recognize that a merely formal notion of equality as procedural fairness can in fact perpetuate existing patterns of disadvantage. Drawing on values such as human dignity, distributive justice, and equal participation, they argue that equality must go beyond consistent treatment of likes. There are two main variants of substantive equality: equality of opportunity and equality of results. According to the notion of equality of opportunity, true equality can only be achieved if people are not only treated equally but are also given the same opportunities. Like competitors in a race, everyone should be able to begin from the same starting point. Equality of opportunity requires the removal of barriers to the advancement of disadvantaged groups, such as upper age limits for employment that may disadvantage women with childcare responsibilities. According to a broader, substantive understanding of the concept, it may also require positive measures such as training. But equality of opportunity does not aim to achieve equality of outcome. Once the race has started, everyone is treated the same. Thus, while equality of opportunity is to some extent about redressing past discrimination, it also stresses individual merit. Equality of results goes further than this and aims to achieve an equal distribution of social goods such as education, employment, healthcare, and political representation. It recognizes that removing barriers does not guarantee that disadvantaged groups will in fact be able to take advantage of available opportunities. Abolishing upper age limits, for

6 See Fredman, Discrimination Law (OUP, 2011) 8-15. 8 France, Le Lys Rouge (Calmann-Levy, 1894) ch 7. ' See Palmer v Thompson 403 US 217 (1971).

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example, does not, by itself, ensure that more women with childcare responsibilities will be able to apply for the respective jobs. Equality of results can be understood and achieved in different ways. In its strongest form, it explicitly aims to increase the representation of disadvantaged groups in educational institutions, employment, or public office through preferential treatment and quota systems. These differing conceptions of equality find their reflection in different forms of legal regulation. Formal equality forms the conceptual basis of the requirement of equality before the law and prohibitions of direct discrimination, whereas prohibitions of indirect discrimination are supported by a substantive notion of equality (see Section 4 for the distinction between direct and indirect discrimination). 'Affirmative action' programmes (see Section 6) can be justified on the basis of a substantive notion of equality, but they are incompatible with a formal conception of equality as consistency. In any jurisdiction, a range of regulations that reflect different conceptions of equality will be found; no legal system relies exclusively on simply one approach to equality.

3 EQUALITY AND NON-DISCRIMINATION IN INTERNATIONAL LAW The right to equality and non -discrimination gives concrete expression to the basic idea on which the whole international human rights system is founded: that all human beings, regardless of their status or membership of a particular group, are entitled to a set of rights. Since it underlies all other human rights, equality is often described not only as a 'right' but also as a 'principle'. The foundational significance of equality is reflected in the fact that it is proclaimed in the very first article of the Universal Declaration of Human Rights (UDHR): 'All human beings are born free and equal in dignity and rights'. This section first gives an overview of the different sources of the right to equality and non-discrimination in international law. Next, it considers the scope of these norms: do they guarantee equality and non -discrimination only in the context of other human rights or across the board? Finally, the prohibited grounds of distinction are explored: which groups are protected against discrimination?

3.1 SOURCES

Article 1(3) of the UN Charter makes it clear that one of the basic purposes of the UN is the promotion of the equal guarantee of human rights for all without any distinction. Numerous instruments aimed at the realization of this notion have been adopted under the auspices of the UN. The general human rights instruments guarantee the right to equality and non-discrimination in several of their provisions: the UDHR in Articles l, 2(1), and 7; the International Covenant on Civil and Political Rights (ICCPR) in Articles 2, 3, and 26; and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in Articles 2(2) and 3. As far as the specialized human rights treaties are concerned, at least three of them are specifically devoted to addressing certain forms of discrimination: the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of Persons with Disabilities (CRPD). The Convention on the Rights of the Child (CRC) and the International Convention on the Protection of the Rights of All Migrant Workers and

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Members of Their Families (ICRMW) at least partly pursue the same objective and contain explicit provisions on equality and non-discrimination. 9 The only international human rights treaties without explicit non-discrimination clauses are the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and the International Convention for the Protection of All Persons from Enforced Disappearance (CPED). The right to equality and non-discrimination is also guaranteed by all major regional human rights instruments: the African Charter on Human and Peoples' Rights (ACHPR) (Articles 2, 3, 18(3)-(4), and 28), the American Convention on Human Rights (ACHR) (Articles 1 and 24), the American Declaration of the Rights and Duties of Man (Article II), the Arab Charter on Human Rights (Articles 2, 9, and 35), the ASEAN Human Rights Declaration (Articles 1, 2, 3, and 9), the European Convention on Human Rights (ECHR) (Article 14 and Protocol No 12), and the Charter of Fundamental Rights of the European Union (Articles 20, 21(1), and 23). In addition, the Inter-American Convention against All Forms of Discrimination and Intolerance provides protection against discrimination based on a long list of criteria, while several specialized regional treaties, such as the Protocol to the ACHPR on the Rights of Women in Africa, the Inter-American Convention against Racism, Racial Discrimination, and Related Forms of Intolerance and the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities, protect against particular forms of discrimination. Finally, it is now widely acknowledged that, at the very least, the right to non-discrimination on the grounds of race, sex, and religion binds all states, irrespective of their ratification of human rights treaties, because it has become part of customary international law. 10 The Inter-American Court of Human Rights has gone further than this and held that also the guarantee against discrimination on other grounds, including language, political or other opinion, national, ethnic or social origin, nationality, age, economic situation, property, civil status, birth, or any other status, forms part of general international law and, indeed, is a norm of jus cogens that cannot be set aside by treaty or acquiescence. 11 3.2 SCOPE: SUBORDINATE AND AUTONOMOUS NORMS Non-discrimination provisions can be subdivided into subordinate and autonomous (or free-standing) norms. Subordinate norms prohibit discrimination only in the enjoyment of the rights and freedoms otherwise set forth in the respective instrument. An example of a subordinate norm is Article 2(1) ICCPR, which states: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, 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.

' CRC, Arts 2 and 28; ICRMW, Arts 1(1 ), 7, 18, 25, 27, 28, 30, 43, 45, 54, 55, and 70. For race, see eg South-West Africa Cases (Second Phase) [1966] IC) Rep 6,293 and 299-300 (Tanaka, J dissenting); Barcelona Traction (Second Phase) [1970] !CJ Rep 3, 32. For the other grounds, see Shaw, International Law (CUP, 2008) 287 and references cited there. ll OC/18, Juridical Condition and Rights of the Undocumented Migrants, IACtHR Series A No 18 (2003) paras 100-1 and 173.4.

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Other subordinate norms include Article 2(1) UDHR, Article 2(2) ICESCR, Article 2(1) CRC, Article 7 ICRMW, Article 1 ACHR, Article 2 ACHPR, and Article 14 ECHR.1 2 As the ECHR does not contain an autonomous norm in addition to its subordinate provision in Article 14, the jurisprudence of the European Court of Human Rights interpreting it is of particular importance. According to the European Court, in order to invoke Article 14, an applicant must show that the facts of the case fall 'within the ambit' of another substantive Convention right. 13 However, there is no need to show that there has been a violation of that Convention right. A measure that in itself is in conformity with the requirements of a given ECHR right, but is of a discriminatory nature, will violate that right when read in conjunction with Article 14. For example, it does not as such amount to a violation of Article 6 ECHR (the right to a fair trial) if a state fails to establish a system of appeals. However, when a state does establish such a system, then this is a matter falling within the ambit of Article 6, and there is a violation of that article read in conjunction with Article 14 if, without a legitimate reason, certain persons are given the right to appeal while others are denied it. Article 7 UDHR, Article 26 ICCPR, Articles 2 and 5 ICERD, Article 24 ACHR, and Article 3 ACHPR, on the other hand, are autonomous norms: they guarantee non-discrimination not only in the context of other rights but in general. For example, Article 26 ICCPR provides: 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 UN Human Rights Committee elaborated on the scope of this provision in Broe/cs v The Netherlands. 14 Mrs Broeks had been denied unemployment benefits on the basis of legislation that provided that married women could only claim benefits if they could prove that they were 'breadwinners' -a requirement that did not apply to married men. The Netherlands argued that Mrs Broeks could not rely on Article 26 ICCPR as it could only be invoked in the sphere of civil and political rights; Mrs Broeks' complaint, however, related to the right to social security, which was specifically provided for under the ICESCR. The Human Rights Committee rejected the government's argument, holding that it did not matter whether a particular subject matter is covered by the ICCPR or some other international instrument. It stressed that 'Article 26 does not merely duplicate the guarantees already provided for in Article 2' but instead 'prohibits discrimination in law or in practice in any field regulated and protected by public authorities'. 15 The Committee confirmed this finding in its General Comment 18. 16 Thus, states parties to the ICCPR have a general obligation neither to enact legislation with a discriminatory content nor to apply laws in a discriminatory way. As noted already, the ECHR only contains a subordinate non-discrimination guarantee. This gap is partially addressed by Protocol No 12 to the ECHR. The Protocol, which entered into force in 2005 but has not been widely ratified so far, contains a non-discrimination

12 ECHR, Art 14 reads: 'The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status: 13 Rasmussen v Denmark (1984) 7 EHRR371, para 29. 14 CCPR/C/29/D/172/1984 (9 April 1987). 15 CCPR/C/29/D/172/1984 (9 April 1987), para 12.3. 16 HRC, General Comment 18, HRI/GEN/1/Rev. 9 (Vol I) 195, para 12.

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guarantee that is not limited to the enjoyment of Convention rights. 17 However, this guarantee is still narrower than the general right to equality before the law and equal protection of the law under Article 26 ICCPR in that it only applies to the enjoyment of rights set forth by (national) law. 3.3 PROHIBITED GROUNDS OF DISTINCTION

Which grounds of distinction are unacceptable and should, therefore, be prohibited? There is no straightforward answer to this question as, depending on one's moral and political views, any criterion may be regarded as either relevant or irrelevant. There is certainly broad consensus today that normally a person's inherent characteristics such as race, colour, or sex are not acceptable criteria for differential treatment. In addition, grounds such as membership of a particular group, holding certain beliefs, and national or social origin are outlawed by most human rights treaties. But as is evident from a comparison between the ICCPR, adopted in 1966, and the ICRMW, adopted in 1990, what is seen as unacceptable can change over time: the ICRMW has considerably expanded the list of prohibited grounds by adding the criteria of conviction, ethnic origin, nationality, age, economic position, and marital status. Today, further criteria, including disability 18 and sexual orientation and gender identity,1 9 would have to be added. In addition, discrimination may be intersectional, that is, based on a combination of characteristics that form an individual's identity rather than a single ground. 20 Intersectional discrimination often occurs based on sex in combination with one or more other grounds. 21 Equality and non-discrimination norms vary widely in their approaches to defining the prohibited grounds of distinction. A first type of norm provides for a general guarantee of equality, without specifying any particular prohibited grounds. Article 24 ACHR, for instance, simply states: 'All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law: Such norms leave it to the relevant body to decide which distinctions are acceptable and which ones are not. A second category of norms uses a diametrically opposed approach: these norms contain an exhaustive list of prohibited grounds. The CEDAW, for instance, prohibits only distinctions based on 'sex' (Article 1), the ICERD those based on 'race, colour, descent, or national or ethnic origin' (Article 1(1)), and the CRPD those based on 'disability' (Articles 1 and 5). Article 2(2) ICESCR, Article 2(1) CRC, and Article 1 ACHR contain lists that are much longer but still fixed (in the case of the ICESCR, 'race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status'). Steering a middle course between these two extremes, there is a third category of norms which contain a list of prohibited grounds but one that is open-ended. For instance, Article 14 ECHR (as well as its Protocol No 12) prohibits 'discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status'. Similarly, Article 2( 1) UDHR, Articles 1(1) and 7 ICRMW, and Article 2 ACHPR provide for non-discrimination

" Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Art 1 ('(l) The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. (2) No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph l '). " See CRPD. " See Chapter 15. ' 0 See Crenshaw, 'Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of 21 See Chapter 16. Color' (1991) 43 Stanford LR 1241.

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'without distinction of any kind, such as ... '. As a consequence, even distinctions made on grounds that are not explicitly listed may engage these provisions. The European Court of Human Rights sometimes does not even find it necessary to state the particular ground of distinction involved when considering a case under Article 14 ECHR. 22 The text of Article 26 ICCPR ('discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status') suggests that this provision is also open-ended. Nevertheless, the Human Rights Committee has often been at pains to fit a particular distinction within one of the listed grounds, be it the specific ones or the broad rubric of 'other status'. Thus, it has found that the reference to 'sex' also includes 'sexual orientation' 23 and that 'other status' covers grounds such as nationality, 24 age,2 5 and marital status. 26 But it has never clarified how it decides whether a difference in treatment comes within the reference to 'other status'. Its efforts to apply one of the listed grounds suggest that the Committee regards the list of Article 26 as exhaustive and it has accordingly stated that an applicant is required to show that the difference in treatment was based on one of the enumerated grounds. 27

4 DIRECT AND INDIRECT DISCRIMINATION At the heart of all non-discrimination norms is the formal equality requirement that likes should be treated alike. It is, therefore, clear that international human rights law prohibits direct discrimination (Section 4.1). But human right bodies and courts have acknowledged that the requirement of consistent treatment is not sufficient to achieve true equality: not only discriminatory treatment but also a discriminatory outcome (indirect discrimination) is prohibited (Section 4.2). Finally, it is important to note that international human rights law prohibits both intended and unintended discrimination (Section 4.3). Whether there has been a difference in treatment or result is the first question that a court needs to assess when considering a discrimination claim under international human rights law. Once a prima facie case of direct or indirect discrimination has been made out, the court must decide whether there is a justification for the difference in treatment or outcome. This second element of the test is discussed in Section 5. 4.1 DIRECT DISCRIMINATION

Direct discrimination occurs when a person, on account of one or more of the prohibited grounds, is treated less favourably than someone else in comparable circumstances. Thus, the complainant must show, first, that others have been treated better because they do not share the relevant characteristic or status and, second, that these others are in a comparable, or, in the terminology of the European Court of Human Rights, 'analogous' 28 or 'relevantly similar', 29 situation. In practice, international human rights bodies often tend to merge the comparability test with the test for whether there is an objective justification for the difference in treatment, explained in Section 5. Eg Rasmussen v Denmark, n 13, para 34. Toonen v Australia, CCPR/C/50/D/488/1992 (31 March 1994) para 8.7. " Gueye v France, CCPR/C/35/D/196/1985 (3 April 1989) para 9.4. " Schmitz-de-Jongv The Netherlands, CCPR/C/72/D/855/1999 (16 July 2001). 26 Danning v The Netherlands, CCPR/C/OP/2 (9 April 1987). 27 BdB et al. v The Netherlands, CCPR/C/35/D/273/1988 (2 May 1989) para 6.7. 28 Lithgow v UK (1986) 8 EHRR 329, para 177. 29 Fredin v Sweden (1991) 13 EHRR 784, para 60. 22 23

Equality and Non-Discrimination under International Law EQUALITY AND NON-DISCRIMINATION

A classic example of direct discrimination is when members of a certain ethnic group are denied access to a public facility, such as a swimming pool, which is open to everyone else. But most cases of direct discrimination are not as straightforward as this. More often, direct discrimination occurs covertly: the 'discriminator' will not admit that the difference in treatment was based on a prohibited ground, making it difficult for the complainant to provide sufficient evidence. Furthermore, as explained already, it may not always be easy to identify a person who is in a comparable situation. How can a woman establish pay discrimination when there are hardly any men doing the same job? 4.2 INDIRECT DISCRIMINATION

Indirect discrimination occurs when a practice, rule, or requirement that is outwardly 'neutral', that is, not based on one of the prohibited grounds of distinction, has a disproportionate impact on particular groups defined by reference to one of these grounds. Thus, although there is no difference in treatment, due to structural biases, treating unequals equally leads to unequal results. The concept of indirect discrimination has its origins in US and European Community (EC) law but has now also found its way into the jurisprudence of international and regional human rights bodies. The Human Rights Committee recognized the possibility of indirect discrimination, albeit without explicitly referring to the concept, for the first time in Singh Bhinder v Canada. 30 The case concerned a Sikh who was dismissed from his employment with the Canadian Railway because he refused to comply with a legal requirement that safety headgear be worn at work, as his religion required him to wear only a turban. The Committee found that the legislation may amount to de facto discrimination: although it was neutral in that it applied to all persons without distinction, it disproportionately affected persons of the Sikh religion. (There was nevertheless no violation of Article 26 ICCPR as the safety headgear requirement was based on reasonable and objective grounds.) But only much later, in Althammer v Austria, a case concerning the abolition of household benefits that affected retired persons to a greater extent than active employees, did the Committee expressly refer to the concept of'indirect discrimination': The Committee recalls that a violation of article 26 can also result from the discriminatory effect of a rule or measure that is neutral at face value or without intent to discriminate. However, such indirect discrimination can only be said to be based on the grounds enumerated in Article 26 of the Covenant if the detrimental effects of a rule or decision exclusively or disproportionally affect persons having a particular race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 31 Similarly, it was only in 2007 that the European Court of Human Rights, in its groundbreaking ruling in DH and others v Czech Republic, came up with an explicit definition of 'indirect discrimination'. Several Roma children had complained that the manner in which statutory rules governing assignment to schools were applied in practice resulted in the placement of a disproportionate number of Roma pupils in 'special schools' for children with 'mental deficiencies'. Referring to the definition of'indirect discrimination' in EC law, the Grand Chamber of the European Court of Human Rights stated: The Court has already accepted in previous cases that a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which,

'° CCPR/C/37/D/208/1986 (9 November 1989). " CCPR/C/78/D/998/2001 (8 August 2003) para 10.2.

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though couched in neutral terms, discriminates against a group ... In accordance with, for instance, Council Directives 97 /80/EC and 2000/43/EC and the definition provided by ECRI [the European Commission against Racism and Intolerance], such a situation may amount to 'indirect discrimination; which does not necessarily require a discriminatory intent. 32 The African Commission on Human and Peoples' Rights seems also to have recognized the concept of indirect discrimination when it found a violation of Articles 2 and 3 ACHPR in a case where legal remedies, even though guaranteed to everyone by law, were in practice 'only ... available to the wealthy and those that can afford the services of private counsel'. 33 The Inter-American Convention against All Forms of Discrimination and Intolerance of 2013 contains, in Article 1(2), an explicit definition of'indirect discrimination'.

4.3 DISCRIMINATORY INTENTION In some legal systems, such as the USA, complainants need to show a discriminatory intention or purpose to establish discrimination. 34 There is no such requirement under international human rights law, the reason why someone has been treated less favourably is irrelevant. That both intended and unintended discrimination are prohibited under international law is apparent from the explicit definitions of discrimination contained in some of the human rights treaties. The ICERD defines discrimination as any distinction based on one of the listed grounds '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'. 35 The CEDAW definition is almost identical. 36 The Human Rights Committee, in its General Comment on non-discrimination, has adopted the same definition for the purposes of the ICCPR 37 and has made it clear in its jurisprudence that discriminatory intention is not a necessary element of discrimination.' 8 Equally, the European Court of Human Rights has indicated that discrimination under Article 14 ECHR may also relate to the effects of state measures. 39 As is illustrated by the rulings in Althammer and DH described in Section 4.2, indirect discrimination is often equated with unintended discrimination. Conversely, it is normally assumed that where there is direct discrimination, there is a discriminatory intention. Although it is true that these concepts will often correlate, this is not always the case. There may be cases of direct discrimination-for example, the exclusion of pregnant women and mothers from certain types of work-where the intention is to protect the respective groups rather than to discriminate against them. On the other hand, a 'neutral' criterion such as a literacy test for job applicants may well be used as a pretext for excluding certain ethnic groups, amounting to intended indirect discrimination.

" (2008) 47 EHRR 3, para 184. Purohit and Moore v The Gambia, Communication No 241/2001, 16th Activity Report (2002) paras 53-4. 34 The leading case is Washington v Davis 426 US 229 (1976). 37 n 16, para 7. " Art 1. " Art 1(1) (emphasis added). 38 Eg Simunek et al. v ]he Czech Republic, CCPR/C/54/D/516/1992 (19 July 1995) para 11.7; Adam v The Czech Republic, CCPR/C/57/D/586/1994 (23 July 1996) para 12.7. 39 Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Belgian Linguistics Case) (No 2) (1968) 1 EHRR252, 284 para 10. 33

Equali(v and Non-Discrimination under International Law EQUALITY AND NON-DISCRIMINATION

5 JUSTIFIED AND UNJUSTIFIED DISTINCTIONS Once it is established that there has been a difference in treatment or outcome, the next question that needs to be answered is whether there is a justification for it. As explained already, it is to some extent inevitable that states classify people into different groups. The crucial question is whether there are objective and reasonable criteria for these distinctions. This section first explains the relevant test under international human rights law. Next, it explores what standard of review human rights bodies or courts apply to carry out this test. Finally, it considers matters concerning evidence and proof. 5.1 THE JUSTIFICATION TEST The Human Rights Committee, in its General Comment on non-discrimination, has stressed that, for the purposes of the ICCPR, 'not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant: 40 But it is in the jurisprudence of the European Court of Human Rights that the criteria for distinguishing between justified and unjustified distinction have been most clearly articulated. The Court interpreted Article 14 ECHR for the first time in the Belgian Linguistics Case and has since repeatedly confirmed those conclusions: [T]he 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 effects 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: Article 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. 41 This two-limb test, requiring that any difference in treatment must (1) pursue a legitimate aim and (2) be proportionate, is very similar to the test used in the context of other rights to assess the permissibility of limitations, described in Chapter 5. The test formulated by the European Court has been adopted, explicitly or implicitly, by most other human rights bodies. While the Human Rights Committee had originally failed to provide a clear and consistent explanation of what it means by 'reasonable and objective criteria', it has later increasingly started to interpret these terms as requiring a legitimate aim and proportionality.42 The Committee on the Elimination of Racial Discrimination and the Committee on Economic, Social and Cultural Rights have embraced the same approach, 43 as has the Inter-American Court of Human Rights. 44 In terms of what exactly this test involves, its first limb will not usually be very difficult for states to meet: most distinctions can be argued to pursue some aim that qualifies as legitimate, for example the protection of public order or tailoring the education system to " Eg Gillot v France, A/57 /40 (IS July 2002) para 13.2. " n 39, para 10. n 16, para 13. CERD, Concluding observations: Australia, CERD/C/AUS/CO/14 (14 April 2005) para 24; CESCR, General Comment 20, E/C.12/GC/20, para 13. " Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica, n 4, paras 56-7. 40

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children's differing learning capabilities. More difficult to satisfy is the second element of the test, the proportionality requirement. This requirement reflects the basic notion that a fair balance ought to be struck between the interests of the community and respect for individual rights. A wide range of factors may need to be considered to assess proportionality, including the suitability of a distinction to achieve the aim pursued, the availability of alternative means, and the question of whether the disadvantage suffered by the affected individuals or groups is excessive in relation to the aim. Whilst this assessment inevitably turns on the specific facts of a given case, international human rights bodies have been consistent in their characterization of certain reasons as not sufficient to justify differential treatment; these include, among others, mere administrative inconvenience, 45 existence of a longstanding tradition,4 6 prevailing views in society, 47 stereotypes,4 8 or convictions of the local population. 49 5.2 STANDARD OF REVIEW

The stringency with which human rights courts or bodies review the existence of a justification will vary according to a number of factors. Most importantly, certain grounds of distinction are generally regarded as inherently suspect and therefore require particularly strict scrutiny. The grounds attracting the great est degree of attention and most likely to be declared unjustified are race, ethnicity, sex, and religion. That race is among these 'suspect classifications' is indicated by the general acceptance of the prohibition of racial discrimination as forming part of customary international law, the widespread ratification of the ICERD, and the finding of the European Commission of Human Rights, later endorsed by the Court, that 'a special importance should be attached to discrimination based on race' and that it may amount to degrading treatment. 50 The Inter-American Commission on Human Rights also applies a strict standard of scrutiny to distinctions based on race. 51 With regard to the related notion of ethnicity, the European Court has stressed that 'no difference in treatment which is based exclusively or to a decisive extent on a person's ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures'. 52 That distinctions based on sex are particularly suspect is underlined by the wealth of international treaties addressing the problem of sexual discrimination, including the CEDAW 53 The Inter-American Commission has stated that distinctions based on sex 'necessarily give rise to heightened scrutiny' 54 and the European Court has observed that 'very weighty reasons would have to be advanced before a difference in treatment on the ground of sex could be regarded as compatible with the [ECHR]'. 55 Finally, the suspect nature of distinctions based on religion can be concluded from the unanimous adoption by the General Assembly of the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief5 6 and the European Court's finding that '[n)otwithstanding 45 Gueye v France, n 24, para 9.5. " Muller and Engelhard v Namibia, CCPR/C/74/D/919/2000 (26 March 2002) para 6.8. 47 Brocks v The Netherlands, n 14. 48 Konstantin Markin v Russia (2013) 56 EHRR 8, paras 141-3. 49 Inze v Austria (1988) 10 EHRR 394, para 44. 50 East African Asians v UK (1973) 3 EHRR 76, paras 207-8; Cyprus v Turkey (2002) 35 EHRR30, para 306. " Case 11.625, Maria Eugenia Morales de Sierra v Guatemala, IACommHR Report No 4/01 (19 January 2001) para 36. " Timishev v Russia (2007) 44 EHRR 37, para 58. " See Chapter 16. " Maria Eugenia Morales de Sierra v Guatemala, n 51, para 36. 55 Abdulaziz, Caba/es and Balkandali v UK (1985) 7 EHRR471, para 78. 56 GA Res 36/55 (25 November 1981).

Equality and Non-Discrimination under International Law EQUALITY AND NON-DISCRIMINATION

any possible arguments to the contrary, a distinction based essentially on a difference in religion alone is not acceptable'.5 7 As far as other grounds of distinction are concerned, it is difficult to discern a consistent approach in international case law. The Human Rights Committee, for instance, has indicated that any distinction based on one of the grounds explicitly listed in Article 26 ICCPR 'places a heavy burden on the State party to explain the reason for the differentiation;s• but that does not seem to mean that differential treatment on grounds other than race, sex, and religion are subject to the same intense scrutiny. The European Court, on the other hand, has suggested that also distinctions based on nationality, 59 illegitimacy,6° and, more generally, membership of any 'particularly vulnerable group in society that has suffered considerable discrimination in the past' (such as people with HIV or a disability and members of sexual minorities) should be treated as inherently suspect.6 1 Lists of suspect classifications are, in any event, not fixed but can change as international law on these matters develops. Given the recent emergence of new international norms against discrimination on grounds such as disability,6 2 sexual orientation,6' and age,6 4 it seems likely that these classifications will soon more widely be regarded as suspect. Apart from the ground of distinction, the intensity of review may also depend on a number of other factors. For example, most courts and human rights bodies tend to apply a lenient standard as far as matters of social or economic policy are concerned, 65 whereas classifications affecting fundamental individual interests entail particularly strict scrutiny.66 Furthermore, it will generally be more difficult for states to justify direct rather than indirect discrimination. The Declaration of Principles on Equality, an important but non-binding document signed by numerous human rights and equality experts, states that 'direct discrimination may be permitted only very exceptionally'. 67 5.3 EVIDENCE AND PROOF

According to established human rights jurisprudence, it is up to the individual complaining of discrimination to establish a difference in treatment or outcome, the ground of distinction, and the existence of comparably situated groups. Having done so, the burden of proof shifts to the state to show that there is a justification for the distinction. 68 In cases of alleged indirect discrimination, however, complainants may find it very difficult to prove that a neutral measure has a disproportionate impact on particular groups. Therefore, the European Court of Human Rights has held that less strict evidential rules should apply in these cases: 'statistics which appear on critical examination to be reliable and significant' may be sufficient prima facie evidence of indirect discrimination.6 9 Thus,

" Hoffmann v Austria (I 993) 17 EHRR 293, para 36. See also Vojnity v Hungary, App no 29617 /07, judgment of 12 February 2013, para 36. " Muller and Engelhard v Namibia, n 46, para 6.7. 59 Gaygusuz v Austria ( 1996) 23 EHRR 364, para 42. 60 lnze v Austria, n 49, para 41. 02 See the CRPD. " Kiyutin v Russia (2011) 53 EHRR 26, paras 63-4 and references cited there. 63 See Chapter 15. 64 See UN Principles for Older Persons, GA Res 46/91 (16 December 1991). " Eg Oulajin and Kaiss v The Netherlands, CCPR/C/46/D/406/1990 and 426/1990 (23 October 1992), individual opinion submitted by Committee members Herndl, Miillerson, N'Diaye, and Sadi, and James v UK (1986) 8 EHRR 123, para 46 (stating that 'the margin ofappreciation available to the legislature in implementing social and economic policies should be a wide one'). 66 Eg Dudgeon v UK (1981) 4 EHRR 149, para 52. " Equal Rights Trust, Declaration of Principles on Equality, available at , Principle 5. 68 Declaration of Principles on Equality, n 67, Principle 21. For the ECHR, see Timishev v Russia, n 52, para 57. " DH v Czech Republic, n 32, para 188.

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in DH, even though the statistical figures submitted by the applicants were contentious, the Court still thought that they revealed a dominant trend and thus accepted them as sufficient to establish a presumption of disproportionate numbers of Roma children being placed in 'special schools'. As a consequence, the burden of proof shifted to the government to show that there was a justification for the disparate impact of the legislation. 70 DH demonstrates that statistical evidence may be of decisive importance to the outcome of cases of alleged indirect discrimination. Yet often the data required to establish a presumption that a measure has a discriminatory effect can, unlike in DH, only be collected by state authorities. The UN treaty bodies, therefore, regularly stress in their concluding observations that states have a duty to collect and analyse relevant statistical data, disaggregated by grounds of distinction_7l Such a duty to gather information has also been included in the Declaration of Principles on Equality. 72

6 POSITIVE ACTION As with any other human right, the right to equality and non-discrimination entails state obligations of different types. 73 The obligation to respect requires states to refrain from any discriminatory action and to ensure that all their laws and practices comply with the right to non-discrimination. The obligation to protect imposes a duty on states to prevent discrimination by non-state actors. According to the consistent jurisprudence of the UN treaty bodies, this means that states must introduce comprehensive legislation prohibiting discrimination in fields such as employment, education, healthcare, housing, and the provision of goods and services. This conclusion is supported by various provisions in the respective human rights treaties themselves. Article 2(d) ICERD, for example, explicitly states that ' [e] ach State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization'; the CEDAW contains a parallel provision in Article 2(e); and most treaties are scattered with norms requiring states to prohibit particular actions of private parties that are discriminatory or may contribute to discrimination, such as racial hate speech (Article 20 ICCPR, Article 4 ICERD, Article 13(5) ACHR), trafficking in women and exploitation of prostitution of women (Article 6 CEDAW), or racial discrimination with regard to employment, housing, or education (Article S(e) ICERD). However, an exclusively prohibitory approach is severely limited in that it focuses on discrimination understood as individual, isolated events that can be remedied through penalizing the perpetrators and compensating the victims. In fact discrimination is often the consequence of deeply embedded patterns of disadvantage and exclusion that can only be addressed through changes to social and institutional structures. Accordingly, it is now well established in international human rights law that it is not sufficient for states to have anti-discrimination legislation in place. Instead, they also have an obligation to promote, guarantee, and secure equality by taking proactive steps to eliminate structural patterns of disadvantage and to further social inclusion. 74 This obligation, often referred to as the

' 0

DH v Czech Republic, n 32, paras 191-5.

Eg CEDAW Committee, Report on twenty-ninth session, A/58/38 (part II), para 134 (Brazil). 73 See Chapter 5. " Declaration of Principles on Equality, n 67, Principle 24. 74 Eg ICERD, Arts 2(l)(e), 2(2), and 7; HRC, General Comment 4, HRI/GEN/1/Rev. 9 (Vol I) 175, para 2; HRC, General Comment 18, n 16, paras 5 and 10; CEDAW, Arts 3 and 5; CERD, General Recommendation XXIX, HRI/GEN/1/Rev. 9 (Vol II) 296, paras 5, 6, 8, 9, 17, 33-5; Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, Arts 2(l)(d), 2(2), 3-24. 71

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duty to take 'positive action', may cover a huge variety of legislative, administrative, and policy measures, ranging from the restructuring of institutions to the provision of 'reasonable accommodation' 75 for individuals in particular circumstances, from educational campaigns to the use of public procurement to promote equality, and from the 'mainstreaming'76 of equality issues in public policy to encouraging participation of affected groups in relevant decision-making processes. One important aspect of 'positive action' are 'affirmative action programmes' or, as they are generally called in international law, special measures of protection. These are 'measures ... aimed specifically at correcting the position of members of a target group in one or more aspects of their social life, in order to obtain effective equality'.'' In their strongest form, such special measures involve the preferential treatment of members of a previously disadvantaged group over others in the allocation of jobs, university places, and other benefits (often referred to as 'positive' or 'reverse discrimination'). For example, when two equally qualified persons apply for a job, priority is given to the female applicant, or a certain number of university places are reserved for racial minorities. Although such preferential treatment is clearly incompatible with a formal notion of equality, international human rights law permits it, thus recognizing that it may be legitimate to prioritize the achievement of substantive equality over the requirement of consistent treatment. Article 1(4) ICERD, for example, provides: 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 or 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. The CEDAW contains a similar provision in Article 4(1). For purposes of the ICCPR, the Human Rights Committee has made it clear that special measures are permissible as long as they meet the general justification test described in Section 5.1, that is, as long as they pursue a legitimate aim in a proportionate manner. 78 Proportionality in this context means, among other things, that the preferential treatment must be introduced for the benefit of genuinely disadvantaged groups, be temporary and cease once the objectives have been achieved, and not result in the maintenance of separate rights for different groups. Not only does international human rights law permit but to some extent it even requires states to adopt special measures of protection. As the Human Rights Committee's General Comment on non-discrimination states: [T]he principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination

75 For a definition of'reasonable accommodation, see CRPD, Art 2. " For 'gender mainstreaming; that is, the integration of a gender perspective in all legislation and public policies, see Report of the Fourth World Conference on Women, A/Conf.177 /20 ( 1995), strategic objective H.2. The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa contains, in Art 2(l)(c), an explicit obligation of gender mainstreaming. See further Chapter 16. " Progress report on the concept and practice of affirmative action by the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, E/CN .4/Sub.2/2001/15 (26 June 2001) para 7. 78 Eg Sta/la Costa v Uruguay, CCPR/C/30/D/198/1985 (9 July 1987) para 10; Jacobs v Belgium, CCPRJ C/81/D/943/2000 (7 July 2004) para 9.5.

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prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. 79 That states may need to adopt special measures has also been highlighted by the Committee on Economic, Social and Cultural Rights. 80 As far as racial groups and women are concerned, the duty follows from Article 2(2) ICERD and Article 3 CEDAW, respectively. At the regional level, the Inter-American Court of Human Rights has observed that 'States are obliged to take affirmative action to reverse or change discriminatory situations that exist in their societies to the detriment of a specific group of persons: 81 and this obligation is now codified in the Inter-American Convention against All Forms of Discrimination and Intolerance. 82 The European Court, finally, has stressed that 'a failure to attempt to correct inequality through different treatment' may amount to a violation of the right to non-discrimination. 83

7 CONCLUSION The concept of equality and non-discrimination in international human rights law has evolved significantly since the adoption of the UDHR. Detailed legal standards have been drawn up and human rights bodies and courts have developed a rich jurisprudence, giving concrete substance to the notion of equality. Nevertheless, considerable gaps, inconsistencies, and uncertainties remain: the concept of indirect discrimination was developed in other jurisdictions and has only very recently been acknowledged by international human rights bodies; details of the justification test, such as the applicable standard of review and evidentiary rules, need further elaboration; and, as far as implementation at the national level is concerned, numerous states do not yet have comprehensive legislation to combat discrimination. The most important challenge, however, is to ensure that every human being is in fact able to enjoy her or his right to equality. In a world in which the poorest 30 per cent collectively own only 1 per cent of the global household wealth and thus 32 times less than the richest 1 per cent, 84 equal rights remain an unfulfilled promise for large sections of the population. Recent developments in international human rights law are evidence of a growing recognition that, while prohibitions of discrimination play a crucial role in achieving equality, states also have an obligation to proactively tackle structural patterns of disadvantage-in other words, formal and substantive approaches to equality need to be combined. One key component of such a proactive strategy must be to ensure that all people can participate on an equal basis in all areas of economic, social, and political life, including in the very decisions on how equality should be realized.

79 n 16, para 10. 80 EgCESCR, General Comment 16, HRI/GEN/1/Rev. 9 (Voll) 113, paras 15 and 35. 82 Art 5. " Juridical Condition and Rights of the Undocumented Migrants, n 11, para I 04. " Stec and Others v UK(2006) 43 EHRR47, para 51. 84 Davies et al., 'The Level and Distribution of Global Household Wealth' (2010) 121 Economic J 223,244.

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FURTHER READING ARNARDOTTIR, Equality and Non-discrimination under the European Convention on Human Rights (Martinus Nijhoff, 2003).

GERARDS, 'The Discrimination Grounds of Article 14 of the European Convention on Human Rights' (2013) 13 HRLR 99.

BAYEFSKY, 'The Principle of Equality or Non-Discrimination in International Law' (1990) 11 HRLJ 1.

LERNER, Group Rights and Discrimination in International Law (Martinus Nijhoff, 2003). McCRUDDEN (ed), Anti-Discrimination Law (Ashgate, 2004).

CHOUDHURY, 'Interpreting the Right to Equality under Article 26 of the International Covenant on Civil and Political Rights' [2003] EHRLR 24.

McKEAN, Equality and Discrimination under International Law (Clarendon Press, 1983).

FREDMAN (ed), Discrimination and Human Rights: The Case of Racism (Oxford University Press, 2001).

O'CONNELL, 'Cinderella Comes to the Ball: Art 14 and the Right to Non-discrimination in the ECHR' (2009) 29 LS 211.

FREDMAN (ed), Discrimination Law (Oxford University Press, 2011).

USEFUL WEBSITES UN Committee on the Elimination of Racial Discrimination (CERD): European Commission Against Racism and Intolerance (ECRI): Equal Rights Trust:

[4] THE PRINCIPLE OF EQUALITY OR NON-DISCRIMINATION IN INTERNATIONAL LAW Anne F. Bayefsky Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 (1) Structural Dimensions ................................................................. 3 (a) Autonomous or Subordinate ................................................... 3 (b) Open-Ended or Self-Contained ................................................ 5 (2) Discriminatory Intention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 (3) Drawii;ig the Line Between Justified and Unjustified Distinctions ......... 11 (a) Identical Treatment .............................................................. 11 (b) Legitimacy of Ends and Proportionality of Means to Ends . . . . . . . . . . . . . 11 (c) International Suspect Classifications ......................................... 18 (4) Affirmative Action .................................................................... 24 ( a) "Special Measures of Protection" ............................................. 24 (i) Relationship between Non-Discrimination and "Special Measures of Protection" ....................................... 24 (ii) What is a "Special Measure" that is Consistent with Non-Discrimination? ................................................ 26 (b) Are Either "Special Measures" or Positive State Action Mandatory?. 27 (i) Special Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 (ii) Positive State Action ....................................................... 28 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

INTRODUCTION Equality or non-discrimination 1 is one of the most frequently declared norms of international human rights law. The proliferation of variations of the equality norm, beginning with the Universal Declaration of Human Rights, 2 followed the Holocaust and the murder of six million Jews, including one million children. In the last 45 years international bodies have been continuously engaged in the development and promulgation of the right. This has occurred in many different contexts: civil, political, economic, social, and cultural rights; employment, remuneration, and education; torture; race, sex, children. It is also presently being considered in a number of further contexts including religion, the mentally ill, indigineous populations, and the right to leave and to return.

* Professor Anne F. Bayefsky, Faculty of Law, Common Law Section, University of Ottawa. I wish to gratefully acknowledge the assistance of the Social Sciences and Humanities Research Council of Canada in the preparation of this paper. 1 It is my view that equality and non-discrimination are positive and negative statements of the same principle. (For a similar view see: J.E.S. Fawcett, THE APPLICATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS, (1969), p. 239; B.G. Ramcharan, Louis Henkin, ed., THE INTERNATIONAL BILL OF RIGHTS: THE

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Although equality or non-discrimination is a dominant and recurring theme of international human rights law, the norm is not found in all the different sources of international law in a single, unified form. Nevertheless the subject of international law and the equality or nondiscrimination norm can be approached in terms of definitional issues for which international legal materials provide useful solutions. While these definitional elements cannot legitimately be exhibited strung together as the sole meaning of all equality provisions in international law, or even as a meaning from any single international source, the elements themselves represent consistent themes in existing international jurisprudence. International law has been concerned in particular with four areas of importance to a definition of equality: (1) structural methods of prohibiting discrimination or protecting equality; (2) the issue of whether a discriminatory intention is a necesssary element of discrimination; (3) drawing the line between unjustified and justified distinctions; (4) the consistency of special measures of protection with non-discrimination. I will consider each of these areas in turn.

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C OVENANT ON CIVIL AND POLITICAL RIGHTS (1981), p. 252; Warwick A. McKean, EQUALITY AND DISCRIMITATION UNDER INTERNATIONAL LAW (1983), p. 288; Y. Dinstein, Discrimination and International Human Rights, 15 ISRAEL YEARBOOK OF HUMAN RIGHTS (1985) 11, p. 11. Definitions of "discrimination" are found in only 4 human rights treaties (see infra, at p. 8). All of these definitions tend to use "equality", or at least "equality of treatment", as interchangeable with "non-discrimination". The two I.LO. Conventions define discrimination in terms of equality or vice versa. The Racial Discrimination Convention and the Women's Discrimination Convention define discrimination in terms of having an equal basis or footing with respect to the enjoyment of rights and freedoms. In addition, International Labour Organization Convention Concerning Equal Remuneration (No. 100), 165 U.N.T.S. 303 (1953) defines equal remuneration in Art. 1 (b) as: "The term 'equal remuneration for men and women workers for work of equal value' refers to rates of remuneration established without discrimination based on sex." This use of the terms discrimination and equal treatment in international law is supported by the European Court of Human Rights interpretation of Article 14 of the European Convention on Human Rights ([European] Convention for the Protection of Human Rights and Fundamental Freedoms, (1955) 213 U.N.T.S. 222.) Article 14 states that the rights and freedoms in the Convention are to be secured "without discrimination" but it has been defined as "equality of treatment is violated if the distinction has no objective and reasonable justification". (Case "Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium" (Merits), 23 July 1968, Volume 6, Series A, European Court of Human Rights, paragraph 10.) See also: Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Inter-American Court of Human Rights, Advisory Opinion of 19 Jan. 1984, Separate Opinion of Judge R.E. Piza Escalante, 5 HUMAN RIGHTS LAW JOURNAL 161, p. 183 (1984), (paragraph 10): "it appears clear that the concepts of equality and nondiscrimination are reciprocal, like the two faces of one [and the] same institution. Equality is the posit.ive face of non-discrimination. Discrimination is the negative face of equality." 2 G.A. Res. 217 A(TII), U.N. Doc. A/810, at 71 (10 Dec. 1948).

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(1) Structural Dimensions

There are two structural dimensions of an equality right or nondiscrimination provision which will affect its substantive capacities.

(a) Autonomous or Subordinate The first concerns whether the prov1s1on is autonomous or subordinate. Article 26 of the Covenant on Civil and Political Rights 3 for instance, is clearly an autonomous or free-standing equality norm. It states in part: [a]ll 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 ...

Equality before the law and equal protection of the law are guaranteed in themselves, not merely in the context of a threat to another substantive Covenant right or freedom. This interpretation of Article 26 is confirmed by a General Comment which the Human Rights Committee has produced on nondiscrimination. It states: " ... article 26... provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities. Article 26 is therefore concerned with the obligation imposed on State parties in regard to their legislation and the application thereof. Thus, when legislation is adopted by a State party, it must comply with the requirement of article 26 that its content should not be discriminatory. In other words, the application of the principle of non-discrimination contained in Article 26 is not limited to those rights which are provided for in the Covenant. " 4

This result has also been applied in individual communications such as Broeks v. The Netherlands. 5 In this case the Committee found a breach of Article 26 because women were denied social security benefits on an

3 G.A. Res. 220(XXI), 21 U.N. GAOR. Supp. (No. 16) 52, U.N. Doc. A/6316 (1966). Article 26 states: 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. 4 CCPR/C/21/Rev. 1/Add. 1, Adopted by the Human Rights Committee under Article 40( 4) of the International Covenant on Civil and Political Rights at its meeting 21. November 1989. It will be reproduced in the forthcoming Annual Report A/45/40. The Committee is authorized to formulate General Comments by Covenant Article 40(4) and has been doing so since 1981. 5 Communication No. 172/1984, A/42/40, (1987), p. 160.

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equal footing with men, despite the fact that the Covenant did not require any state to enact legislation to provide for social security. 6 On the other hand, Article 2 (1) of the Civil and Political Covenant,7 Article 2 of the Universal Declaration of Human Rights,8 Article 14 of the European Convention on Human Rights 9 and Article 2 (1) of the Convention on the Rights of the Child, 10 are subordinate equality norms; they prohibit discrimination only in the context of the rights and freedoms set out elsewhere in the respective instruments. The jurisprudence of the European Court of Human Rights suggests that a subordinate nondiscrimination clause is to be interpreted in the following way. It should be read in conjunction with each of the rights and freedoms in the Convention as if it formed an integral part of each of the articles laying down rights and freedoms. 11 Thus, although the subordinate clause has no independent existence, it complements the other normative provisions. A measure in itself in conformity with the requirements of a provision enshrining a given right or freedom, but which is of a discriminatory nature, will violate the two provisions taken in conjunction. 12

Ibid., paragraphs, 12.4, 15. Article 2(1) of the International Covenant on Civil and Political Rights, supra, footnote 3, states: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, 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. 8 Article 2 of the Universal Declaration on Human Rights, supra, footnote 2, states: 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 ... 9 Article 14 of the European Convention on Human Rights, supra, footnote 1 states: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 10 Article 2(1) of the Convention on the Rights of the Child (A/Res./44/25, adopted Nov. 20, 1989) states: The States Parties to the present Convention shall respect and ensure the rights set forth in this Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 11 Case "Relating to Certain Aspects of the Law on the Use of Languages in Education in Belgium" (Merits), supra, footnote 1. 12 Marckx v. Belgium, 13 June 1978, Volume 31, Series A, European Court of Human Rights, paragraph. 32; Inze v. Austria, 28 October 1987, Volume 126, Series A, European Court of Human Rights, paragraph 36: " ... Art. 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has 6

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(b) Open-Ended or Self-Contained The second structural dimension of an equality or non-discrimination norm which will affect its scope is whether it is open-ended or selfcontained. In the United Nations Charter13 for instance, human rights and fundamental freedoms are to be respected without distinction based on a limited number of named grounds: race, sex, language, and religion. 14 In the International Covenant on Economic, Social and Cultural Rights 15 the rights enunciated are to be exercised without discrimination on the basis similarly of a fixed, though greatly expanded, list of grounds. In more recent international instruments, such as the Convention on the Rights of the Child, fixed lists of grounds have expanded even further. 16 On the other hand, the Universal Declaration of Human Rights 17 and the European Convention on Human Rights 18 prohibit discrimination on the basis of a clearly open-ended or indeterminate number of grounds. The Universal Declaration uses the words "without distinction of any kind such as ... " 19 The European Convention states: "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as ... " 20 The French versions of the Universal Declaration of Human Rights and the European Convention of Human Rights use, in the place of "such as", "notamment". A non-discrimination or equality provision which is open-ended or indeterminate as to the possible grounds of discrimination that will engage the right has one particular significant interpretative result. Determining whether a given distinction violates the non-discrimination principle will never concern whether the given distinction is covered by the non-discrimination provision or not. Every distinction, of any kind, will invoke the non-discrimination or equality principle. Thus, for example, Article 14 of the European Convention on Human Rights has effect solely in relation to the "rights and freedoms" safeguarded by those provisions. Although the application of Art. 14 does not presuppose a breach of one or more of such provisions - and to this extent it is autonomous - there can be no room for its application unless the facts of the case fall within the ambit of one or more of the latter." 13 59 Stat. 1031, T.S. No. 993. 14 Ibid., Arts. 1(3), 13(1)(b), 55(c), and 76(c). 15 Article 2(2); G.A. Res. 220(XXI), 21 GAOR, supp. (No. 16) 49, U.N. Doc. A/6316 (16 Dec. 1966). Article 2(2) states: The State Parties to the present Covenant 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. 16 Article 2(1) includes for example ethnic origin and disability. Supra, footnote 10. 17 Article 2, supra, footnote 2. 18 Article 14, supra, footnote 9. 19 Article 2, supra, footnote 8. 20 Article 14, supra, footnote 9. Emphasis added.

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been considered by the European Commission of Human Rights in the context of the following distinctions, none of which is expressly set out in Article 14: the legal profession and other professions; non-commissioned military personnel and officers; married and unmarried mothers; striking trade union members and non-striking trade union members; selfemployed persons and employees; British subj.ects residing abroad and British subjects residing abroad who are in the diplomatic service; and convicted prisoners and convicted persons at liberty. In the case of Rasmussen v. Denmark 21 the European Court of Human Rights did not find it necessary even to state the particular ground of distinction involved. In the Court's words: [f)or the purposes of Article 14, the Court accordingly finds that there was a difference of treatment as between Mr. Rasmussen and his former wife as regards the possibility of instituting proceedings to contest the farmer's paternity. There is no call to determine on what ground this difference was based, the list of grounds appearing in Article 14 not being exhaustive. 22

If a distinction of any kind has been made the right is engaged and the issue of whether or not it has been violated does not turn on questions such as whether "sex" includes sexual orientation or pregnancy, or whether "national origin" includes nationality or citizenship. The Civil and Political Covenant, Article 26, also uses the language: "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 . . . birth, or other status. " 23 This suggests that the Covenant ought to be interpreted in a manner similar to the European Convention. And in fact there has been an individual communication before the Human Rights Committtee which supports this conclusion. In Blom v. Sweden 24 the Committee found admissable a communication in which the distinction made was based on attendance and public subsidy of public, as opposed to private, schools. Although the Committee concluded that a violation of Article 26 was not substantiated, their conclusion was not based on the inapplicability of Article 26 to the facts of the case. This was despite the fact that this ground of distinction is neither enumerated in Article 26 nor comes within any obvious sense of "other status". However, other individual communications suggest that the Committee does not intend to interpret the Covenant in the same way as the European Court and Commission interpret the similar language of the European Convention. In the case of Gueye v. France 25 a distinction was 21 22

23 24

25

28Nov.1984, Vol. 87, Series A, European Court of Human Rights= 6HRLJ 17 (1985). Ibid., paragraph 34. Supra, footnote 3. Communication No. 191/1985, A/43/40, (1988), p. 211. Communication No. 196/1985, A/44/40, (1989), p. 189.

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made between retired soldiers of Senegalese nationality and retired soldiers of French nationality. The Committee found a violation of Article 26 and in so doing stated: ... nationality as such does not figure among the prohibited grounds of discrimination listed in article 26 ... Under article 26, discrimination in the equal protection of the law is prohibited on any grounds such as, race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. There has been a differentiation by reference to nationality acquired upon independence. In the Committee's opinion, this falls within the reference to "other status" in the second sentence of article 26.26

The effort by the Committee to fit the ground of distinction in the case within "other status" suggests that the grounds covered by Article 26 will be limited. Similarly, in B. v. The Netherlands 27 a distinction was made by a public administrative agency between physiotherapists that had been directly notified of the lack of certain insurance obligations and those physiotherapists which had not been directly notified. The Committee found the case to be inadmissable and in so holding stated: [t]he Committee also recalls that Article 26, second sentence provides " ... other status". The Committee notes that the authors have not claimed that their different treatment was attributable to their belonging to any identifiably distinct category which could have exposed them to discrimination on account of any of the grounds enumerated or "other status" referred to in Article 26 . . .28

In other words, the Committee is apparently suggesting that despite the language of Article 26 which states that discrimination is prohibited on "any ground" they will nevertheless limit the scope of the Article to cases involving grounds which are explicitly enumerated in the Article or which can be said to come within the words "other status", the reach of the latter term as yet undefined. If the Human Rights Committee in fact imposes such a limitation on the scope of Article 26 it would be an extremely unfortunate result. The Committee is obviously concerned that a non-discrimination provision, which it acknowledges is not limited to Covenant rights, 29 will permit a flood of individual communications. However, the Committee's Rules of Procedure for the consideration of individual communications contain a rule which permits the Committee to declare inadmissable a case which is not "sufficiently substantiated". 30 Appropriate use of this rule would allow the Committee to control the quality of communications to be 26 27 28 29 311

Ibid., paragraph 9.4. Communication No. 273/1989, A/44/40, (1989), p. 286. Ibid., paragraph 6.7. See General Comment, supra, footnote 4, paragraph 12. Rule 90(b), A/44/40, (1989), p. 180.

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considered on the merits without resorting to a distorted interpretation of the text of the Covenant and an arbitrary distinction between enumerated and other grounds or a contrived definition of "other status". This would also more closely adhere to the travaux preparatoires of the Covenant, in which attempts to introduce new grounds to the existing list of enumerated grounds were met with the response that such grounds were covered by both the expressions "discrimination on any ground" and "other status". 31

(2) Discriminatory Intention International legal materials suggest a discriminatory intention is not a necessary element of discrimination or a denial of equality. In the South West Africa Cases (Second Phase), 196632 the majority of the International Court of Justice failed to deal with the merits of the submission that South Africa had violated its international obligations; however, in his dissenting opinion Judge Tanaka dealt with the substantive issues raised by the applications. South Africa argued that the policy of apartheid was required for the purpose of the promotion of the well-being and social progress of the inhabitants of the Territory, and produced many witnesses and experts to support their claim. Judge Tanaka, in enunciating what was in his view a customary international law of non-discrimination based on race,33 found that different treatment is permitted when it is just or reasonable, and justice or reasonableness excludes arbitrariness. "The arbitrariness which is prohibited, means the purely objective fact and not the subjective condition of those concerned. Accordingly, the arbitrariness can be asserted without regard to ... motive or purpose." 34 And he concluded: "Consequently, the practice of apartheid is fundamentally unreasonable and unjust. The unreasonableness and injustice do not depend upon the intention or motive of the Mandatory, namely its mala fides. " 35 There are only four human rights treaties which contain explicit definitions of discrimination. Specifically, the Convention on the Elimination of Racial Discrimination states: 31 Bossuyt, M.J., GUIDE TO THE "TRAVAUX PREPARATOIRES" OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, Martinus Nijhoff, c. 1987, p. 486: "Proposals to add 'association with minority groups', 'economic or other opinion' and 'educational attainment' to the enumeration were thought to be unnecessary since they were deemed adequately covered by the expressions 'discrimination on any ground' and 'other status'. [E/CN.4/SR.172, § 55 & § 57 (DK); E/CN.4/SR.173, § 4 (CSW), § 18 (F)]." 32 South West Africa Cases, Second Phase, I.C.J. Reports, 18 July 1966. 33 Ibid., at p. 293. 34 Supra, footnote 32, p. 306. 35 Supra, footnote 32, p. 314.

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In this Convention, the term "racial discrimination" shall mean 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 exercice, on an equal footing, of human rights and fundamental freedoms in political, economic, social, cultural or any other field of public life. 36

Similarly, the Convention on the Elimination of Discrimination Against Women states: For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercice by women, irrespective of their marital status on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field. 37

I.L.O. Convention Concerning Discrimination in Respect of Employment and Occupation (No. 111) states: For the purpose of this Convention the term "discrimination" includes: (a) Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. 38

U.N.E.S.C.O. Convention Against Discrimination in Education (1960) states: For the purposes of this convention, the term "discrimination" includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, ecunomic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular ... 39

Three of these definitions find discrimination by looking to either purpose or effect; I.L.O. Convention 111 40 looks only to effects. Consequently, a discriminatory purpose or intention is clearly not a requirement here of discrimination. Furthermore, the Human Rights Committee has now adopted, in its General Comment on non-discrimination, the definitions of discrimination in the Racial and Women's Discrimination Conventions. In the Committee's words: While these conventions deal only with cases of discrimination on specific grounds, the Committee believes that the term "discrimination" as used in the Covenant should be understood to imply any distinction, exclusion, 36 Article 1, International Convention on the Elimination of All Forms of Racial Discrimination, (1969) 660 U.N.T.S. 195. 37 Article 1, Convention on the Elimination of All Forms of Discrimination Against Women, U.N.G.A. Res. 341180, G.A.O.R. 34th Sess, Supp. 46, p. 193, 191.L.M. 33. 38 Article l(a), 362 U.N.T.S. 31. 39 Article 1, (1962) 429 U.N.T.S. 93.

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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. 41

However, it should be pointed out that when it has come to applying the idea of looking to discriminatory effects or results the Committee has seemingly retreated. In P.P. C. v. The Netherlands 42 the Committee stated: " ... the scope of Article 26 does not extend to differences in results in the application of common rules in the allocation of benefits. " 43 In other words, the Committee found the communication inadmissable because Article 26 did not cover circumstances where the law on its face applied uniformly to all persons concerned. Or facial neutrality insulated legislation from the purview of Article 26, regardless of its discriminatory effect. In the case of Vos v. The Netherlands 44 the Committee stated: ". . . differences in result of the uniform application of laws do not per se constitute prohibited discrimination. " 45 The latter remark is difficult to understand, since no difference is per se discriminatory. The two cases suggest that laws which are neutral on their face cannot be impugned despite having discriminatory effects. This conclusion would render Article 26 impotent in the context of many modern forms of discrimination. While not necessarily stemming from bigoted intentions, discrimination may take the form of requiring the same treatment of persons with different needs and characteristics. An example would be height and weight requirements for police officers that in practice result in the exclusion of women and members of certain ethnic and racial minorities. In more general terms, the two cases might be taken as suggesting that identical treatment of unequals is not discrimination, but this would directly contradict other statements by the Committee rejecting this claim. Alternatively, the Committee might be interpreted as attempting to introduce here a kind of tort notion of forseeability in which some results would not be considered as true consequences of discriminatory rules or their application. If so there would be no inconsistency between these statements and the definition accepted in the General Comment which entails that discriminatory intention or purpose is not a necessary element of discrimination.

40

41 42 43 44 45

Supra, footnote 38. Supra, footnote 4. Communication No. 212/1986, (1988), N43/40, p. 244. Ibid., paragraph 6.2. Communication No. 218/1986, (1989) A/44/40, p. 232. Ibid., para. 11.3.

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(3) Drawing the Line Between Justified and Unjustified Distinctions

(a) Identical Treatment International law offers suggestions as to how to draw the line between unjustified and justified distinctions. The preliminary point is made, by both the European Court of Human Rights and the Human Rights Committee, that not all differences in treatment are discriminatory or that equal treatment does not mean the same treatment. 46 In the words of the Human Rights Committee General Comment on non-discrimination: "[t ]he enjoyment ofrights and freedoms on an equal footing ... does not mean identical treatment in every instance." 47 In other words, failure to take account of relevant differences or treating unequals the same is as discriminatory as treating equals differently. As Aristotle stated, there is cause for complaint ". . . when either equals have and are awarded unequal shares, or unequals equal shares. " 48 (b) Legitimacy of Ends and Proportionality of Means to Ends More specifically, the European Court and Commission of Human Rights have formulated criteria for distinguishing justified from unjustified distinctions in the course of interpreting Article 14 of the European Convention. Article 14 states: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The Court interpreted Article 14 in the Belgian Linguistics case, decided in 1968, and has repeated those conclusions in many cases. 49 The Court stated: the principle of equality of treatment is violated [or in the words of the Marckx case "a distinction is discriminatory"] if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference in treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 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 realized. 50 46 Belgian Linguistics, supra, footnote 1, paragraph 10: " ... Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognized . . . The competent national authorities are frequently confronted with situations and problems which, on account of differences inherent therein, call for different legal solutions; moreover, certain legal inequalities tend only to correct factual inequalities." (p. 34, Series A). 47 Supra, footnote 4, paragraph 8. 48 ETHICANICOMACHEA, trans. W.D. Ross. O.U.P. c.1925, Book V. 3, 1131a. 49 For example, the case of Marckx v. Belgium, supra, footnote 12. 50 Supra, footnote 1, paragraph 10.

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This definition contains two key requisites. A non-discriminatory distinction must have: (a) an objective and reasonable justification, that is, it must pursue a legitimate aim; and (b) there must be a reasonable relationship of proportionality between that aim and the means employed to attain it. Subsequent cases have added refinements. In the case of Abdulaziz, Caba/es & Balkandali v. U. K. 51 the Court dealt with the argument that a right of non-discrimination did not apply to activities a government was not obliged to undertake by the Convention. The Court stated: The notion of discrimination within the meaning of Article 14 includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention. 52

(This is consistent with the fact that Article 14 is not an autonomous right provided that the treatment falls within the ambit of a Convention right or freedom.) In Lithgow and others v. U. K. 53 the Court noted that Article 14 "safeguards persons (including legal persons) who are "placed in analogous situations" against discriminatory differences in treatment ... " 54 In other words, discrimination involves treating differently those whose circumstances are otherwise analogous. In Aristotle's words: " ... justice considers that persons who are equal should have assigned to them equal things." 55 Obviously, identifying those who are properly considered to be in analogous situations will be a critical and substantive task in applying the norm. However, this concept, while uncontrovertible in theory, is apparently not well understood by the Court in practice. In Rasmussen v. Denmark56 the Court first determined that the two individuals, husband and wife in this case, were "placed in analogous situations" 57 and then went on to consider whether the different treatment each received was justified. The point of the principle is that those persons who are genuinely in analogous situations ought not to be treated differently. Then in Johnston & others v. Ireland 58 the Court unfortunately applied the analogous situation

28 May 1985, Volume 94, Series A, European Court of Human Rights. Ibid., paragraph 82. 53 8 July 1986, Volume 102, Series A, European Court of Human Rights. 54 Ibid., paragraph 177. 55 IBE POLITICS OF ARISTOTLE, trans E. Barker, c. 1946, O.U.P., Book III, xii, 1282b. To put it another way, the principle of equality requires that persons who are equal should be treated equally, or again, that two persons should be treated equally if they are equal in relevant respects. 56 Supra, footnote 21. 57 Supra, footnote 21, paragraph 37. 58 18 December 1986, Volume 112, Series A, European Court of Human Rights. 51

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requirement in a circular manner. It used the very difference in treatment complained of to conclude that the two situations were not analogous. The case concerned the recognition in Ireland of only certain divorces, specifically those obtained abroad by persons then domiciled abroad. The applicants complained of discrimination on the ground of financial means since persons resident in Ireland and having the necessary means could obtain a divorce which would be recognized in Ireland. The Court said merely, without addressing the question of why there was no analogy: "[i]n its view, the situations of such persons [who obtained foreign divorces while domiciled abroad] and of the first and second applicants cannot be regarded as analogous. There is, accordingly, no discrimination . . ." 59 A further refinement to the European analysis of non-discrimination was made in Jnze v. Austria. 60 In that case discriminatory "convictions" of the local population were cited by the Government as justifying legal differential treatment on the basis of illegitimacy. The Court refused to consider this "traditional outlook" as justification for such treatment. They were able to reject the argument in spite of their oft-repeated view that international machinery for protecting fundamental rights is subsidiary to national systems of safeguarding rights and that the national authorities are in a better position than the international judge to determine the appropriateness of limitations. 61 The European Court's definition of non-discrimination or equality of treatment has been quoted with approval by the Inter-American Court of Human Rights in an Advisory Opinion in 1984. 62 In the words of the InterAmerican Court: there would be no discrimination in differences in treatment of individuals by a state when the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review. These aims may not be unjust or unreasonable, that is, they may not be arbitrary, capricious, despotic or in conflict with the essential oneness and dignity of humankind. 63

The European Court's definition has also been incorporated into the Human Rights Committee's interpretation of Article 26 of the Covenant.

Ibid., paragraph 60. 28 October 1987, Volume 126, Series A, European Court of Human Rights. 61 Handyside v. U.K., 7 December 1976, Volume 24, Series A, European Court of Human Rights, paragraph 48; Sunday Times v. UK., 26 April 1979, Volume 30, Series A, European Court of Human Rights, paragraph 59; Dudgeon v. UK., 22 October 1981, Volume 45, Series A, European Court of Human Rights, paragraph 52. 62 Amendments to the Naturalization Provisions of the Constitution of Costa Rica, supra, footnote 1, p. 172 (paragraph 56). 63 Supra, footnote 1, p. 173 (paragraph 57). 59 60

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In the words of the Committee's General Comment: " ... not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant." 64 The Human Rights Committee has applied this definition in a number of individual communications. 65 Its application, however, has been uneven and confused. In the admissability decision of M.J.G. v. The Netherlands 66 the author of the communication claimed an unreasonable differentiation existed between soldiers and civilians in relation to the ability to appeal against a summons. The Committee found Article 26 inapplicable and the communication inadmissable because " ... the author has not claimed that the Netherlands military penal procedures are not being applied equally to all Netherlands citizens serving in the Netherlands armed forces. " 67 In other words, the Committee determined that the author was treated equally compared to everyone else in the same class of individuals complaining of discrimination vis-a-vis individuals outside the class. Or two classes set apart by a legislative distinction under attack were found not to be comparable because of that very legislative distinction. By contrast, in the communication of Gueye v. France 68 the Committee carefully examined the criteria put forward by the government to justify the differential treatment with respect to pension rights of former members of the French Armed Forces of Senegalese, as opposed to French, nationality. The Committee concluded the criteria were not reasonable and objective. In the course of its decision the Committee insisted " ... mere administrative inconvenience or the possibility of some abuse of pension rights cannot be invoked to justify unequal treatment. " 69 However, shortly thereafter, in Vos v. The Netherlands 70 the Committee considered legislation which provided that a disabled man Supra, footnote 4. Aumeeruddy-Cziffra eta/. v. Mauritius, Communication No. 35/1978, A/36/40, (1981) = 2 HRLJ 139 (1981); Broeks v. The Netherlands, Communication No. 172/1984, A/42/40, (1987), p. 139 at paragraph 13; Danning v. The Netherlands, Communication No. 180/1984, A/42/40, (1987), p. 151 at paragraph 14; Zwaan-de-Vries v. The Netherlands, Communication No. 182/1984, A/42/40, (1987), p. 160 at paragraph 13 = 9 HRLJ 258 (1988); Stal/a Costa v. Uruguay, Communication No. 198/1985, A/42/40, (1987), p. 170; Gueye v. France, Communication No. 19611985, A/44/40, (1989), p. 189 at paragraph 9.4; Vos v. The Netherlands, Communication No. 218/1986, A/44/40, (1989), p. 232 at paragraph 11.3; Ave/lanai v. Peru, Communication No. 202/1986, A/44/40, (1989), p. 196 = 9 HRLJ 262 (1988). 66 Communication No. 267/1987, A/43/40, (1988), p. 271. 67 Ibid., paragraph 3.2. 68 Supra, footnote 65. 69 ·supra, footnote 65, paragraph 9.5. 70 Supra, footnote 65 .. 64

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whose former wife dies retains the right to a disability allowance but a disabled woman whose former husband dies loses the right to a disability allowance. Instead, she becomes entitled to a widow's pension, which in the author's circumstances was less than her disability allowance. The author claimed that the law was particularly unjust as she had been divorced for 22 years and had been providing her own support when she became disabled. Thus she argued, she should be treated primarily as a disabled person and not as a widow. The government argued, [a]t the time when the General Widows and Orphans Act was passed, it was customary for husbands to act as bread-winners for their families, and it was therefore desirable to make financial provision for dependents in the event of the bread-winner's premature death. 71

The Dutch Government also argued that the rule was " ... necessary . . . to avoid the necessity of entering the person concerned in the records of two different bodies responsible for paying benefits and to avoid having to levy income tax in arrears on income from two separate sources." 72 And the Government also pointed out that the widow's pension was usually more than the disability allowance because most married women have worked part-time and therefore qualify for only partial disability benefits. 73 The Committee concluded on the basis of the State Party's explanations of the legislative history, the purposes and application of the legislation that the rule was based on objective and reasonable criteria. 74 This is an unacceptable result. It is clearly directly at odds with the Committee's statement in Gueye that mere administrative inconvenience or the possibility of abuse cannot justify differential treatment. A dissenting opinion, signed by two of the Committee's 18 members, explicitly pointed out that the failure of the legislation to allow for a "modicum of flexibility in its implementation" should have rendered the differential treatment unjustifiable. 75 Secondly, the decision fails entirely to recognize that this legislative distinction bore the hallmarks of classic stereotyping of women with its accompanying consequences of degradation and second-class status. It was based on outmoded assumptions about women and their role in society; it assumed married women do not work full-time and it penalized those married and disabled women who did. It categorized women in terms of their relationships with men, refusing to address them as persons in their own right-even where those relationships had ended a quarter of a century earlier. 71

72 73

74 75

Supra, Supra, Supra, Supra, Supra,

footnote 65, paragraph 8.6. footnote 65, paragraph 8.8. footnote 65, paragraph 8.9. footnote 65, paragraph 12. footnote 65, paragraph 4, opinion of Messrs. Urbina and Wennergren.

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Vos may be contrasted with three cases, Aumeeruddy-Cziffra et al. v. Mauritius, 16 Broeks v. The Netherlands 17 and Ave/lanai v. Peru. 78 In Aumeeruddy-Cziffra the Committee considered Mauritian immigration and deportation legislation which required foreign husbands, but not foreign wives, to apply to the Minister of the Interior for a residence permit; in the case of refusal of the permit there was no possibility of redress before a court oflaw. The Committee stated that". . . an adverse distinction based on sex is made, affecting the alleged victims in their enjoyment of one of their rights. No sufficient justification for this difference has been given. "79 The right referred to here was Article 17( 1), the right to be free from arbitrary or unlawful interference with one's family. They further stated that such legislation was ". . . discriminatory with respect to Mauritian women and cannot be justified by security requirements. " 80 They therefore held that there was a violation of Articles 2(1), 3 and 26 in conjunction with both Articles 17(1), and 23(1) (the entitlement of the family to protection by society and the state). In these circumstances where the viability of married life and the family unit was seriously threatened the Committee had little difficulty in finding a violation of the Covenant. In Broeks the law stated that in order to receive certain unemployment benefits a married woman must prove she was a "breadwinner"; a married man would receive such benefits without proving he was a "breadwinner". The Committee simply pointed out that such a differentiation is made on the basis of sex and that it places married women at a disadvantage to married men. They also noted that the Government had in fact since changed the law to remove the disadvantage or discrimination, although the change did not retroactively apply to the author. They then concluded "[s]uch a differentiation is not reasonable" ,81 and that there had been a violation of Article 26 since the author had been "denied a social security benefit on an equal footing with men. " 82 In this case the fact that the Government had "effectively acknowledged" 83 the discriminatory nature of the legislation and changed the law obviously simplified the Committee's task. In Ave/lanai v. Peru the Human Rights Committee found a violation of Article 26 by the Peruvian Civil Code; it states that a married women is not entitled to sue with respect to matrimonial property. The wife had Supra, .,Supra, 78 Supra, 19 Supra, 80 Supra, 11 Supra, '' Supra, '' Supra,

16 77

footnote 65. footnote 65. footnote 65. footnote 65, paragraph 9.2(b)2(i)8. footnote 65, paragraph 9.2(b)2(ii)3. footnote 65, paragraph 14. footnote 65, paragraph 15. footnote 65, paragraph 14.

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attempted to sue for non-payment of rent by tenants of apartment buildings which she owned. Peru had been uncooperative in the case, refusing specifically to address the issues raised in the communication. Moreover, the Peruvian Supreme Court had apparently failed to notify the author of its decisions on two petitions she had filed in the case with the Court. In these circumstances the Committee stated simply the facts before them revealed a violation of, inter alia, Article 26. In comparison with Vos, A vellanal suggests that very broad denials of equal treatment in circumstances of a more general disrespect for human rights protection will be more easily handled by the Human Rights Committee than more complex legislative schemes originating from states with good human rights records. All of these cases make it important to emphasize that while the European Court's definition of a discriminatory distinction may be helpful in theory in drawing the line between justified and unjustified distinctions, it is not self-enforcing. Its impact will depend on the willingness of the interpreting body to apply it rigorously. The results, for instance, will likely be different when the European Court states, in the context of applying Article 14: these distinctions could have been dictated by a legitimate aim, namely ... As for confinement in a cell during strict arrest, the Netherlands legislator could have had sufficient reason for not applying this to officers. 84

or again in another-case: The Court has . . . found that, whatever their severity, the legal or administrative provisions are based on objective criteria ... This purpose is plausible in itself and it is not for the Court to determine whether it is possible to realize it in another way. 85

than when the Commission states in contrast, in a different case applying Article 14: It is incumbent on the Commission therefore to examine closely the purported justification upon which are practiced differences in treatment on grounds of sex in the securement of Convention rights and freedoms. 86

In general the European Court has articulated a concept of a margin of appreciation which in essence limits the scope of international judicial review of the acts of national authorities. In the context of nondiscrimination, the Court has said: The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify 84 Case of Engel and Others v. The Netherlands, 8 June 1976, Volume 22, Series A, European Court of Human Rights, paragraph 72. Emphasis added. 85 Case "Relating to Certain Aspects of the Laws on the Use of Languages in Educq,tion in Belgium" (Merits), supra, footnote 1, p. 50. Emphasis added. 86 Mmes. X, Caba/es and Balkandali v. U.K., European Commission of Human Rights, 12 May 1983 (Art. 31 Report), paragraph 103. Emphasis added.

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a different treatment in law; the scope of this margin will vary according to the circumstances, the subject-matter and its background. 87

Consequently, the degree of deference the Court pays to the justifications for differential treatment which have been advanced by national authorities will have an impact on the outcome of cases. Overall, however, there has been little articulation of "the circumstances, the subject-matter and its background" upon which the margin of appreciation will vary in discrimination cases. The few exceptions are these. In the context of non-discrimination the Court has stated that in areas where there is "little common ground between the Contracting States" or the law is in a "transitional stage", states will be accorded a wide margin of appreciation. 88 Secondly, the margin of appreciation will be narrower in the context of two specific grounds of discrimination, sex, and illegitimacy. 89 (c) International Suspect Classifications The technique of tailoring the stringency of evaluations of the legitimacy of distinctions to particular grounds is also a feature of other international legal sources. Although most non-discrimination provisions in international treaties are open-ended with respect to grounds of discrimination, and hence do not preclude any classification from claiming a right to equal treatment, there are various indications in international law that the seriousness with which those claims should be treated ought to vary depending on the ground upon which the distinction is made. 90 "To treat more seriously", in the terms of the European Inze v. Austria, supra, footnote 60, paragraph 41. Rees v. UK. 17 October 1986, Vol. 106, Series A, European Court of Human Rights, paragraph 37; Rasmussen v. Denmark, supra, footnote 21, paragraph 40 = 6HRLJ 24 (1985). This ratio is also evident, although unarticulated, in the Human Rights Committee case of Danning v. The Netherlands (supra, footnote 65). Here the author was a male co-habiting with a woman to whom he was not married; he was entitled to less disability allowance than a married man. The Committee held that there was no violation of Article 26 because (a) marriage carried with it duties and responsibilities which were different than those of cohabiting, unmarried persons; (b) the unmarried could choose to marry; ( c) when they did not they were not entitled to the benefits provided for married couples. On this reasoning distinctions based on common-law status are unlikely ever to be found to be discriminatory. 89 Sex discrimination: see Abdulaziz, supra, footnote 51 and infra, text accompanying footnote 103; Illegitimacy: see Inze, supra, footnote 60 and infra, text accompanying footnote 117. 90 There is also a suggestion that justificatory arguments about classifications ought to be organized around a consideration of the individual interests at issue; or the seriousness with which the claim to equal treatment or non-discrimination should be treated will also vary with the interest to be protected. In Dudgeon v. the U. K. the European Court stated: "However, not only the nature of the aim of the restriction but also the nature of the activities involved will affect the scope of the margin of appreciation. The present case concerns a most intimate aspect of private life. Accordingly, there must exist particularly serious reasons before interferences on the part of the public authorities can be legitimate for the purposes of Article 8(2)." Emphasis added. Supra, footnote 61, paragraph 52. 87 88

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Convention test for the legitimacy of a classification, would mean to examine more closely purported justifications for differences in treatment, requiring the aim to meet a greater social need, or requiring a greater degree of fit or proportionality between the means taken and the aim pursued. 91 The grounds which international legal materials in general suggest are deserving of the greatest degree of attention, whose use should be suspect, or are the most likely to be unjustified, are race, sex, and religion. There are various sources which indicate that race is among these international "suspect classifications". First, a number of cases decided by the International Court of Justice suggest that the norm of nondiscrimination has become a rule of customary international law, at least in the context of distinctions made on the basis of race. For example, Judge Tanaka in the South West Africa cases stated: "we consider that the norm of non-discrimination or non-separation on the basis of race has become a rule of customary international law . . . " 92 In an Advisory Opinion of the International Court of Justice in 1971, the Namibia case, the Court stated: "to enforce distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter . . . " 93 91 Note however, that the European Court and Commission themselves have not clearly applied Article 14 in this manner. Despite the fact that there are European Convention cases which suggest that justificatory arguments will be tailored to grounds of distinction (Abdulaziz, supra, footnote 51) or the interests affected (Dudgeon, supra, footnote 61 ). the application of Article 14 of the European Convention has not generally been organized along either of these lines. The European Court has articulated one formula for drawing the line between unjustified and justified distinctions (see supra, p. 11) and has generally applied this same formula to all distinctions which have come before it under Article 14. What counts as a justification in the context of a particular distinction will simply vary from case to case, and depend on an ad hoc consideration of factors, without the application of any more generalized directives organized by either the ground of the distinction or the interests affected by the distinction. This is in marked contrast for instance, to the levels of scrutiny approach of the United States Supreme Court with respect to the equal protection of the laws provision in the 14th Amendment of the United States Bill of Rights. In the latter case there are two or three fairly fixed formulas concerning the degree of importance of a legislative objective and the necessary nexus between that objective and the means used to attain it. Grounds of distinction are then associated with one of these two or three general formulas. 92 Supra, footnote 32 at 293. 93 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council 276 (1970), Advisory Opinion, [1971) I.C.J. Reports 3, at 57. See also Barcelona Traction, Light & Power Co. I.C.J. Reports 1970, p. 3, paras. 33, 34: an essential distinction should be drawn between the obligations of a State towards the international community as a whole ... they are obligations erga omnes. Such obligati~

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Second, in the East African Asians v. U. K. case of 1973 the European Commission of Human Rights found: The Commission recalls . . . that, as generally recognized, a special importance should be attached to discrimination based on race; that publicly to single out a group of persons for differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when differential treatment on some other ground would raise no such question. 94

The Commission found that the immigration legislation in question subjected the applicants to racial discrimination which amounted to degrading treatment. 95 Third, the American Restatement of Foreign Relations Law concludes that at a minimum, systematic racial discrimination practiced as a matter of state policy is a violation of customary international law. 96 Fourth, the Civil and Political Covenant states that derogations from obligations under the Covenant in certain emergency situations will be permitted provided that, inter alia, "such measures . . . do not involve discrimination solely on the ground of race, colour, 97 sex, language, religion or social origin. " 98 Fifth, all existing treaties that contain a nondiscrimination or equality provision which lists prohibited grounds of discrimination include "race". In addition to race, international law indicates that distinctions based on sex in particular are deserving of the highest degree of scrutiny. This conclusion may be drawn from the following factors. First, sexual and racial discrimination are the only two grounds of discrimination which have had sufficient degree of international agreement so as to permit the promulgation of specialized treaties devoted solely to non-discrimination on these bases. 99 Second, there is a relative marked abundance of

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derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as from the principles and rules concerning the basic rights of the human person including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law ... others are conferred by international instruments of a universal or quasi-universal character. 94 East African Asians v. United Kingdom, 14 December 1973, (Article 31 Report), Application Numbers 4403/70, etc., paragraph 207, reproduced in 3 EUROPEAN HUMAN RIGHTS REPORTS 76. 95 This was a breach of Article 3, supra, footnote 1 and infra, footnote 102. 96 The American Law Institute, Restatement of the Law: The Foreign Relations Law of the United States, Vol. 2, May 14, 1986, § 702, at p. 161, Commentp. 165, Reporters' Notes p. 172. · '17 Racial discrimination includes, according to Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (supra, footnote 36), discrimination on the basis of colour. 98 Article 4 (1), supra, footnote 3. 99 The Convention on the Rights of the Child (supra, footnote 10) is similarly devoted specifically to the treatment of the young; (the age limitation ofa "child" is undefined by the Convention).

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international treaties devoted to women and issues related to sexual discrimination. 100 Third, in Mmes X, Cabales and Balkandali v. U.K. 101 the European Commission of Human Rights held: Significantly, heading the citation of prohibited forms of discrimination under Article 14 of the Convention is that of discrimination on grounds of sex. It is generally to be recognized that classifications based on sex are to be carefully scrutinized, in order to eliminate invidious disadvantages. It is incumbent on the Commission therefore to examine closely the purported justification upon which are practised differences in treatment on grounds of sex in the securement of Convention rights and freedoms. 102

In the same case, renamed Abdulaziz, Cabales & Balkandali, 103 the European Court of Human Rights decided:

100 International Convention Respecting the Prohibition of Night Work for Women in Industrial Employment, (1906), 2 Martens (3rd) 861, 4 A.J.I.L. Supp. 328; Convention Concerning Employment of Women during the Night (1.L.O. 4), (1919), 38 U.N.T.S. 67; Maternity Protection Convention (I.L.O. 3) (1919) 38 U.N.T.S. 53; International Convention for the Suppression of Traffic in Women and Children (1921) and Protocol (1947), 9 L.N.T.S. 416, 18 A.J.I.L. Supp. 130; International Convention for the Suppression of the Traffic in Women of Full Age, (1933), 150 L.N.T.S. 431, and Protocol, (1947), 53 U.N.T.S. 49; Inter-American Convention on the Nationality of Women, (1933), P.A.U.T.S. 37, 28 A.J.I.L. Supp. 61; Convention Concerning Employment of Women during the Night (1.L.O. 41), (Rev. 1934), 40 U.N.T.S. 33; Convention Concerning the Employment of Women in Mines of All Kinds (J.L.O. 45), (1935), 40 U.N.T.S. 63; InterAmerican Convention on the Granting of Political Rights to Women, (1948), P.A.U.T.S. 3; Inter-American Convention on the Granting of Civil Rights to Women, (1948) P.A.U.T.S. 23; Convention (No. 89) Concerning Night Work for Women Employed in Industry (1.L.O. 89), (Revised 1948), 81 U.N.T.S. 147; Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, (1950), 96 U.N.T.S. 271, and Final Protocol, (1950), 96 U.N.T.S. 316; Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (I.L.O. 100), (1951), 165 U.N.T.S. 303; Maternity Protection Convention (Revised) (I.L.O. 103), (1952), 214 U.N.T.S. 321; Convention on the Political Rights of Women, (1953), 193 U.N.T.S. 135; Convention on the Nationality of Married Women, (1957), 309 U. N. T.S. 65; Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, (1962), 521 U.N.T.S. 231; Convention on the Elimination of All Forms of Discrimination Against Women, supra footnote 37; Workers with Family Responsibilities Convention, (I.L.O. 156), (1981), Cmnd. 8773. 101 Supra, footnote 86. 102 Supra, footnote 86, paras. 102, 103. The Commission, moreover, expressly left open the possibility that sexual discrimination might also constitute degrading treatment contrary to Article 3 of the Convention (paras. 121, 122). Article 3, European Convention, supra, footnote 1, provides: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment," a provision from which there can be no derogations (Article 15 (2)). This would make it the only ground other than race to qualify for this especially abhorrent form of denial of human dignity. The Court, supra, footnote 51, explicitly found the difference in treatment in this particular case was not to be regarded as "degrading" within the meaning of Article 3, thereby implying that sexual discrimination per se could in some circumstances amount to a violation of Article 3. 103 Supra, footnote 51.

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it can be said that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference in treatment on the ground of sex could be regarded as compatible with the Convention. 104

Fourth, all treaties which list prohibited grounds of discrimination in provisions for equality or non-discrimination include "sex". 105 Fifth, the derogation clause of the Civil and Political Covenant disallows discrimination on the basis of sex, (in addition to race, colour, language, religion, or social origin). Sixth, the American Restatement of Foreign Relations Law states: " ... freedom from gender discrimination as state policy, in many matters, may already be a principle of customary international law." 106 At the same time, it would be misleading to conclude that sex discrimination has always been treated with special attention by international decision-makers, despite their avowed statements of principle. In the European Convention context for example, weighty reasons for justifying discrimination on the basis of sex have not in fact been consistently required. For instance, in Hagman-Husler v. Switzerland 107 the Commission considered the case of a woman who by the Swiss Civil Code was required to bear the name of her husband. 108 The Commission found the case to be inadmissable on the basis that the law was justified by a need for family members, spouses and minor children, to be easily identifiable to third parties. 109 (This was despite the fact that in this case the female applicant wanted to stand for election using her maiden name precisely because this was the manner in which she would be most readily identified by the electorate.) Similarly, in X. v. The Netherlands 110 the Commission declared inadmissable an application from a woman, who by Dutch law was required to be listed on the electoral register under either her husband's name followed by her maiden name or her maiden name followed by her husband's name. The Commission concluded there was no "appearance of a violation of Article

Supra, footnote 51, paragraph 80. ,os The minimum is found in the U.N. Charter together with the I.LO. Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation, supra, footnote 38. The former lists race, sex, language, and religion; the latter omits language. 1116 Supra, footnote 96, p. 166, § 702 Comment. 107 12 Decisions and Reports, December 1978, Application 8042/77. 108 The local authorities did give her the option of adding her maiden after her husband's name. 1119 Supra, footnote 107, p. 206. 1111 32 Decisions and Reports, July 1983, Application 9250/81. 104

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14" since (a) "the majority of married women in the Netherlands bear their husband's name", and (b) "the electoral register has mainly an administrative function and does not, as such, directly affect the population." 111 In both these cases weak excuses of administrative convenience served to justify a finding of inadmissability on the basis of being "manifestly ill-founded" .112 It is difficult to imagine a similar perception of the trivial nature of these law's impact on self-identity if husbands were required to identify themselves by the names of their wives. Such cases are similar to the Human Rights Committee's attitude toward sex discrimination exhibited in Vos v. The Netherlands. 113 There minimal increases to administrative convenience outweighed the negative effects of stereotypical, harmful attitudes concerning women. The fact that religion is also an international suspect classification is indicated by the following factors. The General Assembly has adopted a Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief. 114 The American Restatement of Foreign Relations Law concludes that "there is a strong case that systematic discrimination on grounds of religion as a matter of state policy is also a violation of customary law." 115 And looking to the minimum common denominator in all treaties which contain a nondiscrimination norm and include lists of grounds of discrimination, one can add religion to those grounds of discrimination deserving of special attention. 116 This is not to suggest that those grounds of distinction which international legal materials indicate are deserving of the greatest degree of attention are fixed. In the European Convention case of Inze v. Austria 117 the Court included illegitimacy as a ground of discrimination most likely to be unjustified. In their words: ... the Court recalls that the Convention is a living instrument, to be interpreted in the light of present-day conditions ... The question of equality between children born in and children born out of wedlock as regards their civil rights is today given importance in the member States of the Council of Europe. This is shown by the 1975 European Convention on the Legal Status of Children born out of Wedlock, which is presently in force in

Ibid., p. 177. European Convention, supra, footnote 1, Article 27 (2). 113 Supra, footnote 65. 114 G.A. Res. 36/55, 25 November 1981. 115 Supra, footnote 96, § 702, Comment p. 165, Reporters' Notes p. 173. 116 "Language" is omitted from I.LO. Convention 111, Article 1 (a) and·hence is denied universality. On the other hand, language will often be closely associated with race, national or ethnic origin. 117 Supra, footnote 60. 111

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respect of nine member States of the Council of Europe 118 • • • [including] Austria ... Very weighty reasons would accordingly have to be advanced before a difference of treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention ... 119

International law continues to develop and expand the list of those grounds of discrimination deserving of heightened scrutiny. This is evident from the list sef'out in the recent Convention on the Rights of the Child, which includes discrimination on the basis of disability. 120

(4) AfTrrmative Action

The fourth and last issue upon which international law offers a more precise content to a definition of equality or non-discrimination is in the area of (a) affirmative action programs, (or as the subject is generally referred to in international law, "special measures", or sometimes, "special measures of protection"), and (b) affirmative, in the sense of positive, state action.

(a) "Special Measures of Protection" (i) Relationship between Non-Discrimination and "Special Measures of Protection" International law has long been concerned with the protection of minorities. 121 The League of Nations system of protection of minorities was, however, clearly limited and a failure. For one, provisions on the protection of minoritie~ and religious and racial equality had been expressly omitted from the Covenant of the League of Nations itself and hence denied general application .122 The failures of the League system resulted in a different emphasis with respect to the protection of human rights in the drafting of the U .N. Charter. The promotion and encouragement of respect for human rights and fundamental freedoms was made a central purpose of the United

Supra, footnote 60. Note there are 23 member States of the Council of Europe. 119 Supra, footnote 60, paragraph 41. 120 Supra, footnote 10, Article 2 (1). 121 See study by F: Capotorti for the U.N. Subcommission on Prevention of Discrimi9ation and P.rntection of Minorities, entitled Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities (1977) U.N. Doc. E/CN. 4/Sub. 2/ 384 (Rev. 11979); McKean, supra, footnote 1, pp. 20ff. 122 For an example of League provisions in this area, see Polish Treaty, L ofN. Doc. C.L. 110, (1927), i.43. 117

118

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Nations. 123 At the same time, the U.N. Charter, and subsequently the Universal Declaration focused on the rights of the individual and the principle of non-discrimination and omitted any reference to minorities. Although it was generally believed at that time that special protection for minorities was unnecessary, given recognition of the human rights and fundamental freedoms of all, specific concern with minority protection led to further U.N. activity. 124 In 1947 the U.N. Commission on Human Rights established a Sub-Commission on Prevention of Discrimination and Protection of Minorities. In 1950 the Sub-Commission submitted an article for the proposed Civil and Political Covenant on the subject of minority protection. This proposal was subsequently approved by the Commission on Human Rights in 1953 with one amendment and ultimately incorporated into the Civil and Political Covenant as Article 27. The Civil and Political Covenant therefore includes both an equality provision in Article 26 and special protection of minorities. Article 27 states: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

The promulgation of both Articles 26 and 27 indicates a conclusion by the international legal order that, in the words of Sub-Commission Rapporteur Capotorti, in a study which he prepared on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, "prevention of discrimination on the one hand, and the implementation of special measures to protect minorities, on the other, are merely two aspects of the same problem: that of fully ensuring equal rights of all persons." 125 Subsequent treaties made provision for both non-discrimination and certain special measures of protection, and were concerned to ensure their compatibility. Thus the I.L.O. Discrimination (Employment and Occupation) Convention (No. 111) 126 deems certain special measures of 123 Article 1 (2) of the United Nations Charter, supra, footnote 13, states: I.The purposes of the United Nations are ... (2), To develop friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace. Article 1 (3) United Nations Charter states: 1. The purposes of the United Nations are ... (3) To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. 124 Louis B. Sohn, The Rights of Minorities, in Henkin, supra, footnote 1, pp. 271-8; McKean, supra, footnote 1, p. 53. 125 (1977) U.N. Doc. E/CN. 4/Sub. 2/384/Add. 5, p. 14. 126 Supra, footnote 38. See infra for definition of discrimination.

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protection or assistance not to be discrimination. 127 The Racial Discrimination Convention 128 and the Women's Discrimination Convention also explicitly deem certain special measures not to be discrimination. The Women's Discrimination Convention makes obvious the link that is understood between providing special measures and preventing discrimination or implementing equality. Article 4 (1) states: Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. 129

Special measures can thus be aimed at achieving equality, and while that objective remains unfulfilled they are not discrimination. 130 As the Human Rights Committee General Comment on non-discrimination states, " ... as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant. " 131

(ii) What Is A "Special Measure" That Is Consistent With NonDiscrimination? International law suggests a number of necessary features of a "special measure" in order for it to be consistent with the principle of equality or non-discrimination. First, both the Racial Convention and I.L.O. Convention 111 definitions of discrimination refer to "preference" as a kind of act which in some circumstances may be discriminatory. Hence, preferences which have the same deleterious effects of impairing equality as distinctions, exclusions, or restrictions are also discriminatory. Only such preferences which can be considered special measures will be deemed not to constitute discrimination. 132 127 Article 5 of the I.L.O. Convention (No. 111) supra, footnote 38, states: Special measures of protection or assistance provided for in other Conventions or Recommendations adopted by the International Labour Conference shall not be deemed to be discrimination. 128 Article 1 (4), supra, footnote 36, states: 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 or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed to be 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. 129 Convention on the Elimination of All Forms of Discrimination Against Women, supra, footnote 37, Emphasis added. 130 Ramcharan, supra, footnote 1, pp. 259-261. 131 Supra, footnote 4, paragraph 10. 132 Lerner, N., THE U.N. CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION, (1980), Sijthoff & Noordhoff, p. 28.

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Second, Judge Tanaka, speaking in his dissenting opm1on in the context of the minority treaties, held that steps to protect minorities cannot be imposed upon members of the group, who consequently have the choice to accept such steps or not. 133 Third, the Racial Discrimination Convention and the Women's Discrimination Convention, which contain express definitions of special measures, 134 set down that such measures must be: undertaken with certain limited purposes, namely, to secure advancement in order to ensure equal enjoyment of human rights and fundamental freedoms, 135 or the acceleration of de facto equality;1 36 temporary; 137 cease when certain set objectives are achieved, namely, equality of opportunity and treatment; 138 and not result in the maintenance of unequal or separate standards or rights. 139 Similarly the Human Rights Committee has endorsed affirmative action when such action is aimed at eliminating conditions which cause or perpetuate discrimination, is taken for a limited time and for only as long as it is necessary to correct discrimination in fact.140

(b) Are Either "Special Measures" or Positive State Action Mandatory? (i) Special Measures Sometimes international conventional law imposes the duty to take special measures or to create affirmative action programs. This is the case with the Racial Discrimination Convention and the Women's Discrimination Convention 141 and less explicitly the Covenant on Civil and Political Rights.

133 "By reason of protection of the minority this protection cannot be imposed upon members of minority groups, and consequently they have the choice to accept it or not." supra, footnote 32, at p. 307. 134 Article 1 (4), Article 2 (2), supra, footnote 36; and Article 4 (1) of the Women's Discrimination Convention, supra, footnote 37, respectively. 135 Article 1 (4), Racial Discrimination Convention, supra, footnote 36. 136 Article 4 (1), Women's Discrimination Convention, supra, footnote 37. 137 Article 4 (1), Women's Discrimination Convention, supra, footnote 37. 138 Ibid. 139 Article 1 (4) Racial Discrimination Convention, supra, footnote 36, Article 4 (1) Women's Discrimination Convention, supra, footnote 37. 140 Supra, footnote 4, paragraph 10. 141 Article 2 (2), supra, footnote 36. See Lerner, supra, footnote 132, p. 32. Article 2 (2) of the Racial Discrimination Convention, supra, footnote 36, states: State 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

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The Committee on the Elimination of Discrimination Against Women (CEDA W), which is responsible for monitoring the implementation of the Women's Discrimination Convention, has reiterated the importance of this obligation in its "general recommendations" contained in its annual report. General recommendation No. 5142 states: Taking note that ... there is still a need for action to be taken to implement fully the Convention by introducing measures to promote de facto equality between men and women, .. .Recommends that States parties make more use of temporary special measures such as positive action, preferential treatment or quota systems to advance women's integration into education, the economy, politics and employment.

The Human Rights Committee has interpreted the Covenant to require affirmative action programs in certain circumstances. In its General Comment on non-discrimination the Committee stated: ... the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population ... 143

(ii) Positive State Action In other cases, international jurisprudence suggests that there is a duty on the state to take positive action to achieve equality outside the context of "affirmative action programs" or preferential treatment. Specifically, there are indications from the Human Rights Committee and CEDAW that the implementation of equality sometimes requires positive state action. The Human Rights Committee has made a number of statements in its General Comments with respect to the necessity of positive government action. In a 1981 General Comment the Committee stated:

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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. Article 3, Women's Discrimination Convention, supra, footnote 37, states: States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men. 142 7th session, 1988, A/43/38, (1988), p. 109. 143 Supra, footnote 4, paragraph 10.

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The Committee considers it necessary to draw the attention of States parties to the fact that the obligation under the Covenant is not confined to the respect of human rights, but that States parties have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdiction. This aspect calls for specific activities by the States parties to enable individuals to enjoy their rights. This is obvious in a number of cases . . . but in principle this undertaking relates to all rights set forth in the Covenant. 144

In even stronger terms the Committee interpreted Article 3, which provides for equal rights of men and women, 145 as well as Article 2(1), which provides for the obligation to respect Covenant rights "without distinction of any kind ... " and Article 26, to require positive action. In their words: First, Article 3, or Articles 2(1) and 26 in so far as those articles primarily deal with the prevention of discrimination on a number of grounds, among which sex is one, requires not only measures of protection but also affirmative action designed to ensure the positive enjoyment of rights. 146

The Committee remarked that "[t]his cannot be done simply by enacting law" and it asked State Parties to provide information in their subsequent State reports concerning what measures " ... have been or are being taken to give effect to the precise and positive obligations under article 3 ... " 147 By reading provisions of the Covenant together with Article 2 of the Covenant the Committee has required positive action in connection with other rights as well. 148 Then in 1989, the Committee's General Comment on nondiscrimination stated: The Committee wishes to draw the attention of State parties to the fact that the Covenant sometimes expressly requires them to take measures to guarantee the equality of rights of the persons concerned. For example, article 23, paragraph 4, stipulates that State parties shall take appropriate steps to ensure equality of rights as well as responsibilities of spouses as to marriage, during marriage and at its dissolution. Such steps may take the form of legislative, administrative or other measures, but it is a positive duty General Comment 3/13, A/36/40, (1981), p. 109; Emphasis added. Article 3 of the Civil and Political Covenant, supra, footnote 3, states: "The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant." 146 General Comment 4/13, paragraph 2, p. 109, supra, footnote 144. It seems likely that here "affirmative action" is being used in the sense of "positive" acts, of which "affirmative action programs" would be one possible manifestation. Emphasis added. 147 Ibid. 148 See General Comment 7 (16), A/37/40, (1982); Article 2 (2) of the Civil and Political Covenant, supra, footnote 3, states: "Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant." 144 145

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of States parties to make certain that spouses have equal rights as required by the Covenant. In relation to children, article 24 provides that all children, without any discrimination ... have the right to such measures of protection as are required by their status as minors, on the part of their family, society and the State. 149

Their comments make it clear that adequate implementation of the equality rights in the Covenant will require positive state action. CEDAW has also made general recommendations which indicate its view that the Convention imposes positive duties for achieving equality. In 1988 CEDA W remarked in General recommendation No. 8: 150 The Committee . . . Recommends that States parties take further direct measures in accordance with article 4 of the Convention to ensure the full implementation of article 8 of the Convention and to ensure to womeri on equal terms with men and without any discrimination the opportunities to represent their Government at the international level and to participate in the work of international organizations.

CEDA W has also made specific proposals for what positive state action would be appropriate in order to implement Convention provisions. In the context of the right to equal remuneration for work of equal value, CED AW recommended State Parties: 151 ... consider the study, development and adoption of job evaluation systems based on gender-neutral criteria that would facilitate the comparison of the value of those jobs of a different nature, in which women presently predominate, with those jobs in which men presently predominate ... They should support, as far as practicable, the creation of implementation machinery and encourage the efforts of the parties to collective agreements, where they apply, to ensure the application of the principle of equal remuneration for work of equal value.

The European Court of Human Rights has made similar comments to those of the Human Rights Committee in the context of defining the rights in the European Convention. It has found that in some circumstances passivity on the part of the State will not be sufficient. For example, the Marckx case concerned the right to respect for family life 152 and legislation which inter alia provided different rules governing inheritance rights of illegitimate children. The Court said: the object of the Article is "essentially" that of protecting the individual against arbitrary interferences by the public authorities. Nevertheless it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective "respect" for family life. 153

149 150 151 152 153

Supra, footnote 4, paragraph 5. 7th session, 1988, A/43/38, (1988), p. 111. General recommendation Nr. 13, 8th session, 1989, A/44/38, (1989), p. 82. Article 8 (1), European Convention on Human Rights, supra, footnote 1. Marckx, supra, footnote 12, paragraph 31.

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A majority of the Court found a violation of Article 14 taken in conjunction with Article 8 and stated that these positive obligations required in these circumstances " . . . the existence in domestic law of legal safeguards that render possible as from the moment of birth the child's integration in his family." 154 The Airey case concerned the right of access to a court 155 and the right to respect family life for a woman who could not afford the costs of petitioning for a decree of judicial separation. The Court stated similarly: hindrance in fact can contravene the Convention just like a legal impediment. Furthermore, fulfillment of a duty under the Convention on occasion necessitates some positive action on the part of the State; in such circumstances, the State cannot simply remain passive and "there is ... no room to distinguish between acts and omissions." 156

In X & Yv. The Netherlands 157 a mentally handicapped girl of 16, who lived in a privately-run home for mentally handicapped children, was forced to have intercourse with a man who was a relation of the home's operator. Her father attempted to file a complaint and to ask for criminal proceedings to be instituted on her behalf. The public prosecutor decided not to open proceedings against the assailant provided that he did not commit a similar offence within the next two years. The Court of Appeal then found that the only applicable provision of the Criminal Code required the victim to complain herself, which she was incapable of doing, and as a result no appeal lay from the decision of the public prosecutor. The European Court found that the failure to have criminal law provisions which applied in these circumstances 158 resulted in a violation of Article 8. Article 8 states that "[ e]veryone has the right to respect for his private and family life, his home and his correspondence." 159 The Court said: ... although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this

Ibid. Article 6 (1), supra, footnote 1. 156 Airey v. Ireland, 9 October 1979, Volume 32, Series A, European Court of Human Rights, paragraph 25. See also paragraph 32. (Article 50 judgment concerning just satisfaction, Airey v. Ireland, 6 February 1981, Volume 41, Series A, European Court of Human Rights). Just satisfaction in this case consisted of the following: In a settlement with the applicant the Irish Government agreed to underwrite all her future legal costs and expenses reasonably incurred in pursuing before the Irish courts the remedy of judicial separation. The Court took note of the settlement and decided it was "equitable". The Court further ordered the Government to pay 3,140 pounds compensation for mental anxiety. 157 26 March 1985, Volume 91, Series A, European Court of Human Rights. 158 Ibid., paragraph 27. 159 Supra, European Convention on Human Rights, footnote 1. 154

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primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life ... These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. 160

Even more specifically the Court held that " . . .the protection afforded by the civil law in the case of wrongdoing of the kind inflicted on Miss Y is insufficient. " 161 Although only the Marckx case was decided in the context of Article 14, these three cases find that the adequate protection of the rights and freedoms in the Convention will sometimes require the state to take positive action. This positive obligation, in the words of the X & Y case, may apply "even in the sphere of the relations of individuals between themselves. " 162 The statement points up that the obligation of State parties to take positive action to achieve equality is closely related to the issue of whether the respective conventions affect relationships between private parties. If freedom from discrimination is violated by a private party, does the state have an obligation to provide a remedy? Traditional international law, which was understood as governing relationships between States, would have given a negative response. But international human rights law challenges old assumptions because it concerns obligations states adopt to protect the rights and freedoms of individuals. Is the obligation to protect those rights and freedoms from infringement by other individuals part of the international responsibility the state has assumed? It is possible to cite a few recent positive responses to this question from international bodies which monitor compliance with non-discrimination norms, although they are not general pronouncements. Firstly, CERD has rendered an opinion concerning an alleged violation of Article 5( e) (i) of the Convention. 163 CERD found this article, which guarantees equality before the law in respect of the right to work and protection against unemployment, was violated when the petitioner was dismissed through a decision of a court which acted upon the request of the petitioner's employer. The employer's request entailed clearly discriminatory reasons for wanting the petitioner's dismissal, but the court's decision made no reference to the discriminatory basis of the employer's request. By way of a remedy, CERD suggested the State help the petitioner to secure employment or other equitable relief if she was not now employed. Albeit her dismissal was ultimately a result of Court order, (or the action of a government organ), the case suggests that the State Party has a

160 161 162

163

p.59.

Supra, footnote 157, paragraph 23. Supra, fooJnote 157, paragraph 27. Supra, footnote 160. Yilmaz-Dogan v. The Netherlands, Communication No. 1/1984, N43/18, (1988),

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responsibility to protect individuals from discrimination in employment by private persons. Moreover, the remedy involved attempts to secure alternative employment despite the fact that the State had not been her employer. Secondly, the Human Rights Committee General Comment on nondiscrimination asks of State Parties " . . . the Committee wishes to know if there remain any problems of discrimination in fact, which may be practised either by public authorities, by the community, or by private persons or bodies. The Committee wishes to be informed about legal provisions and administrative measures directed at diminishing or eliminating such discrimination. " 164 This request suggests that the Committee believes the State Parties to the Covenant are under an obligation to ensure that there is protection from discrimination by private parties. This obligation might entail, for example, the introduction of anti-discrimination legislation directed at private parties and containing non-discrimination norms in contexts such as accommodation, the provision of services, and employment. Thirdly, as noted previously, CED AW has made a general recommendation that in order to implement the provision for equal remuneration for work of equal value States Parties should adopt job evaluation systems, support the creation of implementation machinery and encourage parties to collective agreements to apply the principle. 165 In this recommendation such parties were not limited to state employees. On the other hand, however, the European Commission of Human Rights has not admitted cases which involve this issue. For instance, the Commission rejected the application of a woman who was dismissed by her employer following her complaint of sexual harassment by a fellow employee. 166 The case seems incongruous, though, with the European Court case of X & Y. If criminal law must sometimes be available in circumstances where the enjoyment of rights and freedoms have been initially impaired by a private party, then it would appear that at least civil law remedies ought to be available in less egregious circumstances. CONCLUSION As I noted at the outset, international law contains many different forms of the principle of equality or non-discrimination. Some equality provisions are autonomous, others subordinate; some are open-endea,

Supra, footnote 4, paragraph 9. See supra, footnote 151. 166 Application No. 12597/86, 8 May 1987, unpublished: See Buquicchio-de Boer, M., Sexual Equality in the European Convention on Human Rights: A Survey of Case-law, 1989, Council of Europe document EG (89) 3, pp. 21-22. 164

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some closed, others list no grounds at all; some refer to equality before the law, some to equal protection, others to discrimination, and still others to distinction; some specify contexts such as employment or education, others do not; some contain definitions of discrimination, others do not; some permit measures of special protection, others are silent. This variation has oriented attention to those definitional issues of the equality or non-discrimination principle for which the many sources of international law do provide substantive and consistent outcomes. From the holistic end, while there is no single source of these conclusions, one might summarize the consistent definitional pieces of the concept of equal treatment or non-discrimination in international law this way: - not all differences in treatment are discriminatory or equality does not mean identical treatment; - a distinction is discriminatory if it (a) has no objective and reasonable justification, or pursues no legitimate aim, or (b) if there is not a reasonable relationship of proportionality between that aim and the means employed to attain it; - the legitimacy of the aim and the reasonableness of the relationship between that aim and the means employed to attain it, will be harder to establish (at least) for distinctions based on race (including colour, national, or ethnic origin), sex, and religion; - traditional outlooks or local prejudice will not count as reasonable justification for differential treatment; - a discriminatory purpose or intention is not a requirement of discrimination; - preferences may still be discriminatory if they have the effect of impairing equality; - non-discrimination applies to all state action regardless of whether such action is itself required by international law; - special measures or affirmative action will be consistent with equality or non-discrimination provided such measures are: applied with the consent of the members of the group; undertaken with the sole purpose of achieving equality; temporary; discontinued when the goal is achieved; not result in the maintenance of unequal or separate standards; - positive state action, and in certain cases affirmative action or preferential treatment, is sometimes required by the state in order to fulfill its duty to respect equality - the necessity of positive state action may extend to protecting individuals from impediments to equality imposed by private parties.

[5] Non-Discrimination and Equality Matthew Craven

Article 2(2) The States Parties to the Present Covenant 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. Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.

I. INTRODUCTION

As a human rights instrument, the clear purpose of the Covenant is to protect the fundamental rights of every person without exception. That human rights are seen to adhere to every human being by virtue of their humanity means that they are possessed by every person to an equal extent. As the Preamble stresses, the Covenant is based upon an idea of the 'equal and inalienable rights of all members of the human family'. The concept of 'equal rights' is confirmed in the Covenant in a general manner by the fact that the rights pertain to 'everyone', and more specifically in article 3 which makes express reference to the equal rights of men and women. The idea of equality may also be found in a number of other provisions in the Covenant. Article 7 refers to 'equal remuneration for work of equal value', to 'equal pay for equal work', and to 'equal opportunity for everyone to be promoted'. Similarly, article 13 provides that 'higher education shall be made equally accessible to all'. However, it follows from the structure of the Covenant that the most important provision as regards the promotion of equality or of equal rights within the Covenant is article 2(2). In that provision, recognition of a concept of equality is to be discovered in a negative formulation prohibiting discrimination. It could be said that the dual concepts of non-discrimination and equality deriving from article 2(2) 'constitute the dominant single theme of the

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Covenant'. 1 Not only are equality issues relevant to the implementation of all the rights in the Covenant, but the prohibition on discrimination also provides a useful and specific focus for claims relating to economic, social, and cultural rights which otherwise might be dismissed as long-term objectives. II. THE CONCEPTS OF NON-DISCRIMINATION AND EQUALITY

The idea of equality has been peculiarly resistant to definition and, over the centuries, has been given all forms of meanings and characteristics. It is common enough to find references to 'equality of treatment', 'equality of access', 'equality of result or achievement', 'equality of opportunity', 'absolute equality', 'relative equality', 'precise equality', 'formal equality', 'de facto equality', and 'de jure equality'. 2 Despite the inconsistencies in terminological usage and the continuing disputes over certain peripheral issues, a number of basic principles are generally accepted. The idea of human rights assumes that all human beings have some basic, commonly shared characteristics, and that as a result they should be viewed and judged as members of the human race rather than as members of a particular group. The recognition of these shared qualities gives rise to a principle of equality which requires that all persons be treated with equal respect. Thus 'certain forms of state and governmental behaviour which consistently exploit or degrade men and deny both the possession of the shared qualities and "the moral claims that arise (therefrom)" by certain groups while conceding and indeed recognizing them in the case of others should be excluded'. 3 Recognition has to be paid to the fact that, although people have certain common characteristics, they nevertheless possess independent attributes and qualities (whether innate or assumed) which may legitimately be taken into account in the distribution of goods, services, and advantages. It is 1 Ramcharan B., 'Equality and Nondiscrimination' in Henkin L. (ed.), The International Bill of Rights ( 1981 ), 246. In saying this he was referring to the ICCPR; as we shall see however this is also true for the ICESCR. 2 For an account of three different forms of equality see Galloway D., 'The Models of (In)Equality' (1993) 38 McGill U 64. 3 Polyviou P., The Equal Protection of the Laws (1980), 11. Sieghart comments in this vein: 'The primary characteristic which distinguishes "human" rights from other rights is their universality: according to the classical theory, they are said to "inhere" in every human being by virtue of his humanity alone. It must necessarily follow that no particular feature or characteristic attaching to any individual, and which distinguishes him from others, can affect his entitlement to his human rights, whether in degree or in kind, except where the instruments specifically provide for this for a clear and cogent reason-for example, in restricting the right to vote to adults, or in requiring special protection for women and children': Sieghart P., The International Law of Human Rights (1985), 75.

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frequently asserted that equality demands that those who are equal be treated in an equal manner, 4 and that those who are different should be treated differently. 5 The fundamental question remains, however, as to the circumstances in which people can be said to be equal or different, 6 and to the considerations which may form legitimate justifications for differential treatment. One commentator has usefully categorized justifications for differential treatment into two groups: differentiations based upon 'character and conduct imputable to the individual' (such as industriousness, idleness, lawfulness, merit, and carelessness7); and differentiations based upon individual qualities which are relevant to social values (such as physical and mental capacities and talent). 8 However, these criteria do not exhaust all the possible justifications for differential treatment in every circumstance. The achievement of an equitable balance between identical and differential treatment, however, may be approached from either a positive or a negative vantage point. In positive terms, the principle would require that everyone be treated in the same manner unless some alternative justification is provided. In negative terms the principle might be restated to allow differences in treatment unless they are based upon a number of expressly prohibited grounds. The principle of non-discrimination approaches the matter of equality from the negative standpoint. 9 It is primarily a legal technique employed to counteract unjustified inequality. 10 The concept of non-discrimination is, 4 Ramcharan commented in this light: 'Equality ... means equal treatment for those equally situated'. Ramcharan, supra, n. 1, at 252. Cf also Tawney R., Equality (1931), at 47. Vickers J., 'Majority Equality Issues of the Eighties' (1980) Can. HRY 47. 5 Aristotle, Nicomachean Ethics, Bk. 5 (trans. Ross W., 1925). See also Dworkin, who distinguishes between 'equal treatment' and 'treatment as an equal': Dworkin R., Taking Rights Seriously (1977), p. xii. Vierdag notes however that an essential element of proportionality exists in determining the extent of different treatment. He therefore concludes that nondiscrimination requires: 'Equal treatment of equals and unequal treatment of unequals in proportion to the inequality': Vierdag E., The Concept of Discrimination in International Law (1973), 7. 6 Moon R., 'Discrimination and its Justification: Coping with Equality Rights Under the Charter' (1988) 26 Osgood HLJ 673, at 682. This has led some to argue that the idea of equality is an empty and tautological concept: 'It tells us to treat like people alike; but when we ask who "like people" are, we are told they are "people who should be treated alike"': Westen P., 'The empty idea of Equality' (1982) 95 Harv. LR, 537, at 547. 7 e.g. convicted criminals may legitimately be denied the enjoyment of certain rights on the basis that they have disqualified themselves through their actions. 8 Ramcharan, supra, n. 1, at 253. These have been termed by another commentator as 'natural endowments'. Raphael D., Justice and Liberty (1980), 48. 9 The most coherent discussion of the notion of discrimination in legal terms is to be found in Judge Tanaka's dissenting opinion in the South West Africa Cases (Second Phase), (1966) /CJ Rep. 6 at 284-316. 10 Partsch comments that the creation of the legal norm of non-discrimination was primarily aimed at avoiding the uncertainties of the notion of equality. He goes on to say: 'The basic consideration in favour of this negative approach is to achieve a higher degree of clarity and

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however, only a limited means to pursue equality. First, it operates upon the presumption that differential treatment is legitimate unless based upon a proscribed ground. Even in such a case, differential treatment is only prima facie discriminatory. Secondly, the concept of non-discrimination is merely a procedural principle (or an obligation of conduct 11 ) governing the treatment of people as equals. 12 It may be conditioned by, but certainly does not recognize itself, a wider concept of equality that may take cognizance of factual social inequalities. 13 In short, non-discrimination tends to concentrate upon the prohibition of differential treatment rather than identifying those forms of action that are necessary to achieve substantive equality. 14 The notion that people are 'equal' may give rise to claims to different forms of equality. At one extreme, it might be interpreted as 'equality of consideration', recognizing that everyone should have their claims to equal treatment taken into account. 15 Essentially this is no more than saying that those claims exist. At the other extreme, equality can be seen as 'equality of result', 16 in which there should be a numerically equal distribution of goods, services, and advantages. This is universally recognized as being neither desirable nor possible.17 Between these two extremes may be found claims of 'equality of opportunity'. In a weak sense this may be interpreted as allowing everyone to develop their capabilities and pursue their interests without unjustified restrictions. A stronger sense of equality of opportunity, however, requires that opportunity be made meaningful and effective through, in particular, certainty in arriving at equality': Partsch K., 'Fundamental Principles of Human Rights: SelfDetermination, Equality and Non-Discrimination' in Luard E., The International Protection of Human Rights (1957), at 69. Similarly the PCIJ commented in the Minority Schools in Albania Case (1935) PCIJ Ser. A/B, no. 64: 'Equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between different situations'.

Cf. Moon, supra, n. 6. at 694. Some commentators see the object of the non-discrimination clauses as being the promotion of 'equality of treatment'. See e.g. Klerk Y., 'Working Paper on Article 2(2) and Article 3 of the International Covenant on Economic, Social and Cultural Rights' (1987) 9 Hum. Rts. Q 250, at 255. 13 Cf. Meron T., 'The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination' (1985) 79 AJIL 283, at 286. For the view that equality and non-discrimination are merely positive and negative formulations of the same idea see Dinstein Y., 'Discrimination and International Human Rights' (1985) 15 Isr. YHR II, at 19; Bayefsky A., 'The Principle of Equality or Non-Discrimination in International Law' (1990) II HRLJ 1, at 1-2. 14 Cf MacKinnon C., Feminism Unmodified-Discourses on Life and Law (1987), 32-45. For a critique of the 'formal' and 'substantive' notions of equality see McIntyre S., 'Backlash against Equality: The Tyranny of the "Politically Correct"' (1993) 38 McGill LJ 1, at 26-32. 15 Polivou, supra, n. 3, at 12; Raphael, supra, n. 8, at 51. 16 Also referred to as absolute equality, material equality, or equality of satisfaction. 17 If this approach was taken then the policy of maintaining reasonable differentiations between people in terms of merit or virtue, e.g., is untenable. See Flew A., Equality in Liberty and Justice (1989), 177. 11

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the removal of external barriers that affect the acquisition of benefits and distribution of social 'goods', and through the positive promotion of maximum opportunity (for example by education and training 18 ). The notion of equality here demands differential treatment on the basis of initial de facto inequality. 19 Efforts to maximize equality of opportunity have commonly involved the imposition of redistributionalist taxation policies to finance social welfare programmes for the advancement of vulnerable and disadvantaged groups in society. Although this form of equality of opportunity appears to envisage a form of equality of outcome, it is apparent that 'there is no single correct distribution which is discoverable and which satisfies the right to equality'. 20 III. EQUALITY IN THE COVENANT

A The Text of the Covenant It is very much apparent that a notion of equality runs through the heart of the Covenant. The Covenant assumes the creation or maintenance of State 18 An example of the necessity of different treatment is the provision of special access facilities for the physically disabled in educational facilities. Clearly if they were to be treated 'equally' there would be no grounds for building special ramps or lifts. This would effectively deprive them of access to educational opportunities that are open to others. Vickers comments in this respect: 'If we interpret equal treatment as identical treatment regardless of the different needs of individuals, few equality goals will be realized and most equality rights will exist simply on paper': Vickers, supra, n. 4, at 58. 19 The question of different treatment is particularly problematic with regard to minorities. On the one hand the social disadvantagement of such groups might require a long term integrationalist stance emphasizing equality of treatment. On the other hand, notions of cultural independence and self-determination argue in favour of different treatment. Schachter distinguishes between races and ethnic groups: 'In respect of race, one should follow a "universalist-integrationalist" policy (eliminating distinctions) whereas in regard to ethnic groups a pluralist solution, based on the separate but equal doctrine, can be justified and achieved': Schachter 0., 'How Effective are Measures against Racial Discrimination?' (1971) 4 HRJ 293, at 296. Capotorti argues that the essential difference between the protection of minorities and nondiscrimination is that the former requires the maintenance of certain differential treatment to allow them to continue developing their own characteristics. Capotorti F., Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, E/CN.4/Sub.2/3841'Rev.1, at 41, para. 242 ( 1979). However he seems not to recognize that failure on the part of the State to protect the right to cultural identity of minorities is also a question of discrimination. Indeed, Sigler confounds the argument further by asserting that the definition of a minority as: 'any group category of people who can be identified by a sizable segment of the population as objects for prejudice or discrimination or who, for reasons of deprivation, require the positive assistance of the State. A persistent nondominant position of the group in political, social, and cultural matters is the common feature of the minority': Sigler J., Minority Rights: A Comparative Analysis (1983), 5. 20 Moon, supra, n. 6, at 696. Cf. Majury D., 'Strategizing in Equality' in Fineman M. and Thomadsen N. (eds.), At the Boundaries of Law-Feminism and Legal Theory (1991), 320, at 323-4.

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welfare institutions and social safety nets (for example, the provision of housing, food, clothing, and social security), and as such is openly redistributionalist. Certainly the Covenant does not envisage an absolute equalization of result in the sense of achieving an equal distribution of material benefits to all members of society, but it does recognize a process of equalization in which social resources are redistributed to provide for the satisfaction of the basic rights of every member of society. 21 As an ideal then, an uneven distribution of material benefits is only tolerable in so far as the satisfaction of the basic economic, social, and cultural rights of every member of society is already achieved. 22 On a broad view, the objectives of the Covenant are conditioned by the idea of equality of opportunity in its strongest sense. Both the text of the Covenant and the intentions of the drafters appear to bear out this conclusion. The idea of equality of opportunity is specifically recognized in articles 7( c) and 13( 2 )( c). Article 7( c), in particular, specifies that the only legitimate considerations in achieving equality of opportunity for promotion are seniority and competence. 23 States would appear to be under an obligation to eliminate all other barriers to promotion that might exist both de jure and de facto. In particular this might require the adoption of positive measures to promote the opportunities of groups in society that are under-represented in higher management positions. That positive measures may (and indeed should) be taken on behalf of certain groups in society is confirmed by the text of article 10(2) and (3) of the Covenant which provides for special measures of protection to be accorded to mothers before and after childbirth and to children especially in the workplace. Article 3 itself is not so clear in this respect. It provides for the 'equal right' of men and women to the enjoyment of all rights in the Covenant. This might be interpreted as saying no more than that men have no greater claim to the enjoyment of the rights than women. However, it is clear that the drafters intended the provision to have more substance. Although article 3 did not require absolute equality of treatment or result,24 there was 21 As Raphael stated: 'differential distribution according to need implies a belief in a right to a certain kind of equality. The man who is said to be in need falls below a level of benefits which is taken to be the right of all. When special provision is made for him, this is an attempt to bring him, so far as possible, up to the level of what is due equally to all': Raphael, supra, n. 8, at 85. 22 The term 'basic' is used in the sense of an identifiable 'minimum core content' of the rights which is to be achieved irrespective of resource considerations. See above, Ch. 3, text accompanying nn. 212-26. 23 Art. r3(2)(c) requires that higher education be 'equally accessible to all, on the basis of capacity'. It is not as specifically stated here that capacity should be the only consideration. 24 McKean comments: 'Some representatives considered that the paragraph might be taken to decree an "absolute" or "precise" equality or "identity of treatment" but others urged that what was being sought was an effective equality in fact-not the abolition of differences between the roles of men and women in marriage, but rather the equitable distribution of

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certainly a feeling that factual equality should be increased. As the USSR representative commented, the Third Committee was 'elaborating principles of de jure equality; from these principles would arise the de facto equalization of human rights'. 25 He continued, 'equality of rights went further than mere non-discrimination; it implied the existence of positive rights in all the spheres dealt with in the draft Covenant'. 26 It might be argued from the presence of article 3 that the concept of equal rights only applies in relation to the position of women. It would be inappropriate, however, to approach article 3 in such a restrictive manner. Not only is the scope of the non-discrimination provision considerably wider, the presence of article 3 merely reflects the preoccupation of the United Nations at the time of drafting with the issue of sexual equality. 27 B The Approach of the Committee

The approach of the Committee towards the realization of the rights in the Covenant is marked by its insistence upon a process of equalization. As an initial step towards the realization of the rights in the Covenant States are required to identify the disadvantaged sectors of the population.28 Those groups should be the focus of positive State action aimed at securing the full realization of their rights. That the Committee considers action should be prioritized in favour of vulnerable and disadvantaged groups in society affirms its belief that the full realization of the rights will not be achieved merely through economic growth, 29 but rather that direct action must be taken to ensure a more equal (or equivalent) enjoyment of the rights. 30 Indeed, to the extent that the Committee relies upon State-specific benchmarks or indicators, the definition of disadvantagement becomes a relative, as opposed to a universal, or absolute, definition. In such a case, measures to combat disadvantagement are inevitably redistributionalist. If a process of equalization is considered to be a means by which States should achieve the full realization of the rights, it becomes difficult to assess the degree to which the Committee is really concerned with the question of equality itself. For example, if a State builds special homes for persons with physical disabilities, such a step may alternatively be seen as a step towards the realization of the right to housing, or as a measure aimed at achieving rights and responsibilities': McKean W., Equality and Discrimination under International Law (1983), 182. 25 USSR, UN Doc. A/C.3/SR.n83, para. ro (1962). 26 Ibid. 27 Klerk, supra, n. 12, at 256. 28 This is stated as being one of the aims of the reporting process. See General Comment No. 1, UN Doc. E/r989/22, Annex III, at 87, UN ESCOR, Supp. (No. 4) (1989). 29 See above, Ch. 3, text accompanying nn. 205-11. 30 For a criticism of such an approach see Flew, supra, n. 17, at 182-209. He argues instead for the issue of poverty, for example, to be dealt with through a process of economic growth.

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real equality of access to adequate housing. Nevertheless, the concept of equality is relevant outside the achievement of specific levels of enjoyment of economic, social, and cultural rights. Thus, even where the 'minimum core content' of the rights is achieved for all persons, the State may be seen to be under an obligation to ensure that everyone has equality of opportunity or access to higher levels of enjoyment of the rights concerned. 31 In addition to its action in relation to discrimination, which will be dealt with below, members of the Committee have made numerous references to equality of access and opportunity. 32 In doing so, Committee members have tended to rely upon the factual situation in dealing with the question of discrimination. 33 They have further enquired as to State policies designed to remedy situations of de facto inequality, 34 and have looked for improvements in the position over time. 35 It is arguable that determining the extent of equality of opportunity in terms of the result achieved confuses the notion of equality of opportunity with that of equality of result. 36 As Nickel comments: Success in providing equal opportunities will have to be judged in ways that ... require reference to the presence of quality programs to educate and protect against discrimination. Statistical measures of outcomes may be useful as practical guides, but they will not serve as criteria of success. 37

Accordingly, equality of opportunity should be measured by indicators that take into account the possible choices taken by those concerned. The Committee has been clear that it does not countenance the creation of a situation of absolute equality of result. It has emphasized, for example, the necessity of some autonomy for ethnic minorities to ensure the enjoyment of their own culture. 38 As one member stated: 31 This is relevant to the discussion of whether art. 2(2) is subordinate or autonomous, see below, text accompanying nn. 158-75. 32 See e.g. Concluding observations of report of Iran, E/C.12/1993/7, at 4, para. 8; Alston, E/ C.12/1990/SR.31, at 3, para. 10; Rattray, E/C.12/J991/SR.u, at 8, para. 45. 33 e.g. it was commented that a higher proportion of unemployed women in a State suggested a certain amount of inequality in education and training, see e.g. Muterahejuru, E/C.12/ 1987/SR.5, at 10, para. 4; Neneman, E/C.12/J988/SR.3, at 7, para. 29. Similar concern has been expressed over situations where the number of girls in education is lower than that of boys, see e.g. Texier, E/C.12/J988/SR.14, at 7, para. 40; Alston, E/C.12/J988/SR.17, at 8, para. 48; Rattay, E/C.12/J990/SR.31, at 4, para. 13; Jimenez Butragueno, E/C.12/J991/SR.3, at II, para. 51. 34 See e.g. Sviridov, E/C.12/1987/SR.20, at 2, para. 2; Alston, E/C.12/J990/SR.31, at 3, para. 10. 35 See e.g. Jimenez Butragueno, E/C.12/J988/SR. II, at 2, para. 5. 36 Some commentators have taken the view that the full realization of equality of opportunity is to be determined by whether 'the allocation of the good in question in fact works out unequally or disproportinately between different sections of society; if the unsuccessful sections are under a disadvantage which could be removed by further reform or social action'. Williams B., 'The Idea of Equality', in Williams B. (ed.), Problems of the Self (1973). 37 Nickel J., 'Equal Opportunity in a Pluralistic Society' in Paul E., Miller F., Paul J., and Ahrens J. (eds.), Equal Opportunity (1987), u5. 38 See e.g. Alvarez Vita, E/C.12/J991/SR.11, at IO, para. 54.

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'Full' realization of the economic, social and cultural rights recognized in the Covenant did not mean equalling out for all persons in the areas concerned but the fact that everyone was entitled, de facto, to the equal opportunity to enjoy his rights with dignity. 39

At the same time, it seems unavoidable that statistical evidence of 'results' will be used as a measure of equality of opportunity, if only to ensure the effectiveness of any action taken. This does not mean that the Committee is necessarily looking towards a numerical distribution of goods among groups in society, but rather that the measures taken to achieve equality of opportunity are not merely formal and empty of content. As has been noted, equality of opportunity is concerned with the outcome of policies 'so that it results in a fairer and more balanced distribution of social benefits'. 40 IV. ARTICLE 2(2): NON-DISCRIMINATION

The only precise indication as to the meaning of non-discrimination in the drafting of the Covenant was provided by a discussion over whether the term 'discrimination' or the term 'distinction' should be used. 41 There, an overwhelming majority42 endorsed a three-power amendment (Argentina, Italy, and Mexico) to replace the word 'distinction' with the word 'discrimination'.43 The stated purpose was to confirm that certain distinctions may be justified to promote the position of certain backward and underprivileged sectors of the population. 44 The word discrimination seemed to convey more accurately the requirement that the distinction be of an unjustified nature or arbitrary. 45 That this decision should not be over-emphasized, however, is made clear by the fact that during the drafting of the ICCPR the term distinction was retained, it being confirmed that not all distinctions would be forbidden. 46 40 Moon, supra, n. 6, at 699. Taya, E/C.12/1990/SR.46, at 9, para. 42. For an analysis of the travaux preparatoires concerning art. 2(2), see Klerk, supra, n. 12, at 251-3. 42 76-2, 13 abstentions, UN Doc. A/5365, at 22, 17 UN GAOR, Annex (Ag. Item 43) (1962). 43 UN Doc. A/C.3/L.1028/Rev. 2 (1962). 44 There were also fears that the guarantee of rights without distinction would also prevent States from placing any restrictions inter alia on the rights of aliens to take up employment in a country. The replacement of the word distinction by discrimination was intended to avoid such ambiguity. UN Docs. A/C.3/SR.n82, at 241 (1962); A/C.3/SR.1202, at 338 (1962); and A/ C.3/SR.1203, at 341 (1962). 45 Similarly in the drafting of art. 3 it was made clear that not all differences of treatment would be illegitimate. McKean, supra, n. 24, at 182. 46 UN Doc. A/C.3/SR.1258, paras. 244-5 (1963); UN Doc. A/C.3/SR.1259, para. 249 (1963). See also Klerk, supra, n. 12, at 252. McKean comments that the change in attitude from that taken with regard to the ICESCR was largely due to the change in composition of the Committee in the intervening time. McKean, supra, n. 24, at 149. The use of the word 'distinction' is also surprising considering that art. 4 ICCPR refers to 'discrimination'. 39 41

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Similarly, in the Belgian Linguistic Case, 47 despite the fact that the French text of article 14 used the term distinction, the European Court of Human Rights held that the article 'does not forbid every difference in treatment in the exercise of the rights and freedoms recognized'. 48 The only other indication as to the intended meaning of non-discrimination in the Covenant is to be found in the references to 'discrimination in its classical juridical meaning' 49 and to 'discrimination ... in international usage'. 50 It appears to have been suggested that there was a specific and identifiable juridical meaning of the term 'discrimination'. 51 It is possible that reference was being made to the ILO Convention Concerning Discrimination in Respect of Employment and Occupation (ILO No. 111 ) 52 and the UNESCO Convention Against Discrimination in Education,53 both of which contain definitions of discrimination. Certainly, if a clear international test for discrimination in all fields were established, it would have considerable relevance to the interpretation of article 2(2). 54 An important exchange of views took place over the meanings of 'distinction' and 'discrimination' with regard to art. 26 ICCPR (draft art. 24). It was pointed out that the law was justified in making reasonable differentiations in the treatment of certain groups of individuals such as minors, aliens, or persons of unsound minds. See UN Docs. A/C.3/SR.1097-1102 (1962). Discrimination in this sense did not mean distinctions of a favourable kind (positive discrimination), nor did it include private individual preferences. McKean, supra, n. 24, at 13940. McKean comments that art. 2( 1) ICCPR 'does not prevent the drawing of distinctions on the grounds of merit or capacity, nor does the equality principle require identical treatment for all, or forbid relevant and reasonable distinctions'. Indeed art. 25 ICCPR seems to recognize that it is only 'unreasonable restrictions' that qualify as discrimination. Similarly, objections to the phrase 'equality before the law' in art. 26 ICCPR were dispelled by the argument that it was a procedural and not substantive equality that was sought, which did not preclude reasonable differentiations between individuals or groups of individuals. 47 Case 'Relating to certain aspects of the laws on the use of languages in education in Belgium' (Merits), Eur. Ct. HR, Series A, Vol. 6, judgment of 23 July 1968 (1979-80) 1 EHRR 252. 48 Ibid. at 284. 49 Pakistan, A/C.3/SR.1102, para. 4 (1961). 50 Argentina, A/C.3/SR.u84, para. 7 (1962). 51 Ramcharan argues with regard to the provisions of the ICCPR that the status of the concept of non-discrimination in international law has effect both as to the permissibility of derogations from the principle in the Covenant, but also to the determination of State compliance with its obligations under the Covenant. Ramcharan, supra, n. 1, at 250. 52 Adopted 25 June 1958, entered into force 15 June 1960, 362 UNTS 32. Art. 1(1) reads: 'For the purposes of this Convention the term "discrimination" includes any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.' 53 Adopted 14 Dec. 1960, entered into force 22 May 1962, 429 UNTS 93. Art. 1(1) reads: 'For the purposes of this Convention the term "discrimination" includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education.' 54 This is particularly so if the principle of non-discrimination is thought to have the status of customary international law. In the Barcelona Traction Case, the ICJ included among the obligations of States erga omnes 'the principles and rules concerning the basic rights of the human person including protection

Equali(v and Non-Discrimination under International Law

Article 2(2): Non-Discrimination

The definitions of discrimination provided in the above-mentioned Conventions may also be compared with those in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 55 and the Convention on the Elimination of All Forms of Discrimination Against Women (Conv. EDAW). 56 Their similarities have led certain commentators to conclude that a universal 'composite concept' of discrimination can be discerned in the various instruments characterized by the following elements: ( 1) a difference in treatment, (2) which is based upon certain prohibited grounds, (3) and has a certain purpose or effect, (4) in selective fields. 57 The Committee on Economic, Social, and Cultural Rights, however, has not as yet established its own definition of the term 'discrimination' in a General Comment. The only definition to be found in its work is in the reporting guidelines on the subject of article 6. There, the Committee requests States to provide it with information as to: any distinctions, exclusions, restrictions or preferences, be it in law or in administrative practices or in practical relationships, between persons or groups of persons, made on the basis of race, colour, sex, religion, political opinion, nationality or social from slavery and racial discrimination': (1970) !CJ Rep. 3, at 33-4. Similarly in its Advisory Opinion on Namibia (1971) the ICJ stated that 'to establish ... and to enforce distinctions, exclusions, restrictions, and limitations exclusively based on grounds of race, colour, descent, or national origin ... constitutes a denial of fundamental human rights' and 'is a flagrant violation of the purposes of the Charter': Advisory Opinion (1971) !CJ Rep. 3, at 57. Reference to other international instruments is also suggested in para. 41 of the Limburg Principles which states: 'In the application of art. 2( 2) due regard should be paid to all relevant international instruments including the Declaration and Convention on the Elimination of all Forms of Racial Discrimination': (1987) 9 Hum. Rts. Q 122, at 127. 55 Adopted 21 Dec. 1965, entered into force 4 Jan. 1967, 660 UNTS 195. Art. 1(1) reads: 'In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national of 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.' 56 Adopted 18 Dec. 1979, entered into force 3 Sept. 1981. GA Resn. 34/180, 34 UN GAOR, Resns., Supp. (No. 46) at 193 (1980), 1249 UNTS 243. Art. 1 reads: 'For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.' 57 Schwelb E., 'The International Convention on the Elimination of All Forms of Racial Discrimination' (1966) rs ICLQ 996, at 1001. The outline of such a definition has been accepted by the HRC in its General Comment on art. 2( 1) ICCPR where it stated that the term discrimination: 'should be understood to imply 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': General Comment No. 18 (37), UN Doc. A/45/40, at 174, para. 7, 45 UN GAOR, Supp. (No. 40) (1990).

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Non-Discrimination and Equality origin, which have the effect of nullifying or impairing the recognition, enjoyment or exercise of equality of opportunity or treatment in employment or occupation. 58

The similarity between this definition and that adopted in other human rights contexts suggests that the Committee will approach the question of discrimination in the same manner. The four elements of discrimination will be dealt with separately below. A Differential Treatment

The Committee utilizes the common terms to describe differential treatment, namely 'distinctions', 'exclusions', 'restrictions', or 'preferences'. Clearly any one of these terms would suffice to establish an action for the purpose of discrimination. The inclusion of the term 'preferences' suggests that the action does not necessarily have to be directed against the group alleging discrimination, but may be effected through unreasonable promotion of one group at the expense of others. 59 Indeed the Committee noted in the case of Vietnam that there was evidence of discrimination 'on the basis of preferences in favour of persons from certain groups'. 60 The crucial aspect of this, and the other terms, is that they are all relative, presuming a standard of treatment from which that action is differentiated. As one commentator has noted, 'the discriminatory or equal treatment of one person must be measured by the relative treatment of somebody else'. 61 As was established during the drafting of the Covenant, differential treatment, although a prerequisite, is not in itself sufficient to establish a case of discrimination. The Committee's definition goes on to speak of actions that have the effect of 'nullifying or impairing the recognition, enjoyment, or exercise of equality of opportunity'.62 However, defining 'discrimination' in terms of 'equality of opportunity' does little to clarify the complex of issues. In the context of employment, for example, it has to be accepted that certain job requirements may indirectly limit the access to employment of certain groups (such as women in jobs that require heavy manual labour). Similarly in some cases, preference may legitimately be given to members of specific racial groups for the purpose of authenticity. 63 This matter has been underlined in other human rights fora. In the Mauritian Women's Case64 the Human Rights Committee, in finding a 58 Reporting Guidelines, UN Doc. E/1991/23, Annex IV, at 91, para. 3, UN ESCOR, Supp. (No. 3) (1991). 59 It has to be pointed out that from the point of view of equality of opportunity, differential treatment may actually be required in certain circumstances. It is particularly in this respect that the principle of non-discrimination falls short of providing for equality. 60 Concluding observations on report of Vietnam, E/C.12/I993/8, at 2, para. 8. 61 Dinstein, supra, n. 13, at 1I. 62 Supra, n. 58. 63 e.g. a theatrical production might require an actor of a specific racial background. 64 HRC Resn. 9/35, UN Doc. A/36/40, at 134, 36 UN GAOR, Supp. (No. 40) (1981).

Equality and Non-Discrimination under International Law

Article 2(2): Non-Discrimination violation of articles 2(1) and 3 of the ICCPR, considered that a distinction based on sex was not in itself conclusive. The determining factor was that no 'sufficient justification' had been given for such a distinction. 65 Similarly, the European Court of Human Rights found in the Belgian Linguistic Case that the principle of equality of treatment is violated 'if the distinction has no objective and reasonable justification'.66 Any such justification would be assessed in relation to the aim and effects of the measure with regard being had to the 'principles which normally prevail in democratic societies'. There must also be a 'reasonable relationship of proportionality between the means employed and the aim sought to be realized'. 67 That consideration is given to 'principles that normally prevail in democratic societies' is underlined by the margin of appreciation given to States in the determination of 'to what extent differences in otherwise similar situations justify a different treatment in law'. 68 The Court has commented in this respect that 'the scope of this margin will vary according to the circumstances, the subject-matter, and its background'.69 As far as the Committee is concerned, it has not readily addressed such issues. It has found violations of articles 2(2) and 3 in a number of cases, but has not undertaken to assess whether or not there was sufficient justification for the measures in question. Thus in the case of Iran, the Committee merely declared that the exclusion of women from studying a large number of subjects at university and the need for them to obtain the permission of their husbands to work or travel abroad were incompatible with the obligations under the Covenant. 70 It may well be considered that such situations are sufficiently clear in themselves not to have to consider alternative justifications, but the Committee needs to establish a clear understanding of its approach to questions of discrimination in order to give its pronouncements credibility.

B Purpose or Effect The Committee's definition of discrimination, like the ILO Convention, refers to the 'effect' of that differential treatment. 71 The Racial Discrimination Convention refers, in addition, to discrimination that has the 'purpose' of impairing or nullifying the enjoyment of the rights concerned.72 66 Supra, n. 47. 67 Ibid. Ibid. para. 9.2(b) 2(ii) 3. Van Dijk P. and Van Hoof G., Theory and Practice of the European Convention on Human Rights (4th ed., 1991), 396. 69 Inze v. Austria, Eur. Ct. H.R., Series A, Vol. 126, judgment of 28 Oct. 1987, (1988) ro EHRR 394, para. 4r. However there has been little articulation of what constitutes those circumstances, subject-matters, or backgrounds in which the margin of appreciation will operate. Bayefsky, supra, n. ro, at 18. 7° Concluding observations on report of Iran, E/C.r2/r993/7, at 3, para. 6. 72 Supra, n. 55. 71 See above, text accompanying n. 58. 65

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Although the Committee makes no reference to 'purpose' this does not affect State responsibility for intentional but ineffective discriminatory measures. 73 Thus the presence of discriminatory legislation would amount to a breach of the Covenant even if it were not enforced. Accordingly, members of the Committee criticized legal provisions in Zai:re and Iran which required women to seek the permission of their husbands in order to work outside the home 74 or to travel. 75 Similarly, an order prohibiting the employment of members of the Baha'i community in Iran were considered to be contrary to the terms of the Covenant.76 In practice, the actual intention of the State concerned seems to be of little importance. 77 It is clear that in the majority of States some form of discrimination is inherent in the civil, political, social, economic, and cultural traditions of the country. A particular government at any given juncture cannot be considered to have willed that situation, whether expressly or impliedly. 78 The necessity of eliminating discrimination requires that the government take action to remedy circumstances for which it is not itself responsible. This is particularly clear in so far as States are obliged to eliminate discrimination between private individuals. Thus, although discriminatory intention might be determined merely by the existence of discriminatory policies and legislation,79 the Committee has not refrained from criticizing governments on the basis of the de facto situation alone. 80 The emphasis on the 'effect' of policies rather than their intention also means that neutral measures will be considered 'discriminatory' if in fact they negatively affect a group in society that has been singled out for protection. As Judge Tanaka commented in the South West Africa Cases (Second Phase), r966 81 with regard to racial discrimination: 73 As regards the ICCPR, there is some evidence that the practice of the Human Rights Committee suggests that a notion of forseeability has been incorporated in which some results would not be considered as the true consequences of discriminatory rules. Bayefsky, supra, n. 13, at IO. 74 See Alvarez Vita, E/C.12/1988/SR.17, at 2, para. 3. 75 See Vysokayova, E/C.12/1994/SR.II, at 3, para. 9. 76 See Simma, E/C.12/r993/SR.7, at IO, para. 41. 77 For the problems associated with the need to prove an 'intent' to discriminate, see Moon, supra, n. 6, at 687-8. 78 For problems relating to the US doctrine of 'state action', see Black C., 'Forward: State Action, Equal Protection and California's Proposition 14' (1967) 81 Harv. LR 69. 79 This is not conclusive in itself however as discrimination may operate as an unfortunate side-effect of a piece of legislation. In such a case a test of forseeability would have to be made to impute discriminatory intention. In this respect, it is difficult to concur with Meron's assertion that discriminatory intention is easy to establish. Meron, supra, n. 13, at 287. 80 See e.g. Simma, E/C.12/r990/SR.16, at 7, para. 32. The PCIJ advocated a similar conclusion in its advisory opinion relating to German Settlers in Poland (1923), PCIJ Ser. B, No. 6: 'There must be equality in fact as well as ostensible legal equality in the sense of the absence of discrimination in the words of the law.' 81 Supra, n. 9.

Equality and Non-Discrimination under International Law

Article 2(2): Non-Discrimination The arbitrariness which is prohibited, means the purely objective fact and not the subjective condition of those concerned. Accordingly, the arbitrariness can be asserted without regard to ... motive or purpose. 82

This form of discrimination, as found in certain jurisdictions,83 has often been termed 'indirect discrimination'. 84 Although a certain amount of recognition has been paid by Committee members to the notion of indirect discrimination,85 no effort has been made to define the concept as yet. As a general principle, however, indirect discrimination is not established if only one person is adversly affected by the provision concerned; it must affect the group concerned proponderately or in a disproportionate manner. An emphasis on the discriminatory 'effect' of policies and programmes does raise two important points about the Committee's approach. First, it places some emphasis upon what might be termed 'equality of result' as opposed to procedural equality. In effect, the principle of non-discrimination has been given a broad interpretation to embody ideas of equality of opportunity. Secondly, to the extent that indirect discrimination may be established by reference to effects upon a particular group (for example a racial group), it might be said to give rise to a notion of collective rights. 86 C Grounds upon which Discrimination is Prohibited

Most non-discrimination provisions proscribe discrimination on a specified number of grounds, such as sex, race, or ethnic origin 'to make clear that certain factors are unacceptable as grounds for distinction'. 87 As seen above, this does not mean that all distinctions drawn upon those grounds will necessarily be discriminatory; rather that they are 'suspect classifications'. At most, distinctions drawn upon these suspect grounds could be said to amount to prima facie discrimination, depending upon whether or not there is any reasonable justification. 82 83

Ibid. 293.

It has been defined and most fully developed in the USA following the case of Griggs v.

Duke Power Co., 401 US 424 (1971). In the UK see Race Relations Act 1976, s. 1(1)(b), Sex Discrimination Act 1975 s. 1(1)(b). 84 See CERD General Recommendation XIV (42), UN Doc. A/48/I8, at II5, 48 UN GAOR, Supp. (No. 18) ( 1993), where it was stated: 'In seeking whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.' A similar concept is that of 'constructive discrimination' defined by one commentator as 'when an act of the state adds to the disadvantage of an already disadvantaged group': Moon, supra, n. 6, at 697. 85 See e.g. Simma, E/C.12/1989/SR.8, at 8, para. 46; Alston, E/C.12/I994/SR.3, at 6, para. 30. 86 It cannot be said to be a fully-fledged 'collective right' however, as the group identity merely acts as a condition for the protection of the individual. It does not, e.g., give rise to claims for a specific benefit to be granted to that group. 87 Ramcharan, supra, n. 1, at 252.

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The list of 'prohibited' or 'suspect' grounds tends to vary from one treaty to another. It might be the purpose of the treaty, for example, to deal with a specific type of discrimination, in which case, the grounds on which discrimination is prohibited are more restricted. 88 It is clear that the ICESCR, in containing a list of ten prohibited grounds ('race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status') was not intended to be limited in such a way. Nevertheless, the question whether the enunciated grounds are the only ones on which distinctions are prohibited is not specifically addressed. I

Exhaustive or Illustrative

The ten prohibited grounds for discrimination parallel those found in the UDHR. They are not the only grounds to be found in international human rights treaties; others include 'association with a national minority', 89 'ethnic origin',90 and 'disability'.91 It is arguable that the exclusionary principle, expressio unius est exclusio alterius, limits the prohibited grounds to those specifically enumerated in the Covenant. Indeed, that the reference to discrimination 'of any kind' (found in the UDHR) was omitted during the drafting of article 2(2) has led one commentator to conclude that the list of grounds was intended to be exhaustive. 92 Nevertheless, during the drafting of the ICCPR, proposals to specify additional grounds of discrimination were deemed unnecessary because they fell into the ambit of the expressions 'discrimination on any ground' and 'other status'. 93 It would be logical to read the term 'other status' in the ICESCR as having a similarly open-ended meaning. 94 Moreover, it has been asserted that, even though a three-power amendment replaced the words 'such as' with the phrase 'as to', the lack of discussion that took place over the change indicates that the enumeration was intended to remain merely illustrative. 95 88 Examples of this type of treaty are the Racial Discrimination Convention which is limited to distinctions drawn on the basis of 'race, colour, descent, or national or ethnic origin', and the Discrimination against Women Convention which relates to distinctions 'on the basis of sex'. 89 Art. 14, European Convention on Human Rights (1950), 213 UNTS 221. It is unlikely that this adds much to the prohibition of discrimination on the ground of national origin. See e.g. Dinstein, supra, n. 13, at 12. 90 Art. 2(1) Convention on the Rights of the Child, 28 ILM 1448 (1989). 91 Ibid. 92 Bayefsky, supra, n. 13, at 5. 93 UN Doc. A/2929, para. 181, 10 UN GAOR, Annexes (Ag. Item 28), pt. II (1955). 94 It should be noted that the Spanish text of the ICESCR and the ICCPR speak of otra condici6n social (other social status) which would limit the type of additional ground for discrimination. 95 Klerk, supra, n. 12, at 256. For the opinion that art. 2 UDHR is illustrative see Verdoot A., Naissance et significance de la declaration universe/le des droits de l'homme (1964), 95.

Equality and Non-Discrimination under International Law

Article 2(2): Non-Discrimination If the grounds for discrimination are not exhaustive, it is possible that any distinction may require reference to the non-discrimination principle.96 If that were the case, the Committee would have to develop a rationale to justify under what circumstances and on what grounds differential treatment is legitimate.97 Although the Committee has not gone so far as to establish an all-embracing rationale with respect to discrimination, it has extended its scrutiny of differential treatment to grounds other than those specifically enumerated. It has specifically stated, for example, that the requirement that rights be exercised 'without discrimination of any kind', 'clearly applies to discrimination on the grounds of disability' despite the fact that 'disability' is not mentioned as one of the prohibited grounds. 98 In addition to asking questions on the status of ethnic minorities, 99 natural children, 100 women, 101 and men, 102 or discrimination on the basis of religious belief, 103 alternative political philosophies, 104 and class bias, 105 it has 96 This was the position adopted by the European Court of Human Rights in Rasmussen v. Denmark Eur. Ct. HR, Series A, Vol. 87, judgment of 28 Nov. 1984. The Human Rights

Committee does not seem to have adopted this approach with regard to art. 26 however. Bayefsky, supra, n. 13, at 6-7. 97 This could involve a form of 'minimal scrutiny' as that operated in the US, see Allied Stores of Ohio v. Bowers Tax Commission of Ohio, 358 US 522, at 530 (1959). 98 See Draft General Comment on Persons with Disabilities, E/C.12/1993/WP.26, at 2, para. 5. 99 e.g. Muterahejuru, E/C.12/1990/SR.18, at 13, para. 78; Simma, E/C.12/1994/SR.u, at 4, para. 15; Neneman, E/C.12/r992/SR.2, at 6, para. 31. Cf. Concluding observations on report of New Zealand, E/C.12/1993/r3, at 3, para. 17; Australia, E/C.12/r993/9, at 2, para. 8. This could be seen to include indigenous populations, cf. Konate, E/C.12/r990/SR.7, at 4, para. 13; Bonoan-Dandan, E/C.12/r991/SR.3, at IO, para. 44; Alvarez Vita, E/C.12/r994/SR.u, at 6, para. 26. 100 e.g. Fofana, E/C.12/r987/SR.7, at 8, para. 39; Badawi El Sheikh, E/C.12/r988/SR.8, at 2, para. 3; Bonoan-Dandan, E/C.12/r994/SR.4, at 7, para. 35; Ceausu, E/C.12/r994/SR.I0/Add.1, at 3, para. 9. 101 The Committee has asked numerous questions as to the position of women. As regards the legal situation of women see e.g. legal prohibition against discrimination against women, Jimenez Butragueno, E/C.12/1987/SR.7, at 6, para. 23; de jure and de facto differences between men and women, Alvarez Vita, E/C.12/1987/SR.8, at 7, para. 29.; equality under the law, Jimenez Butragueno, E/C.12/1987/SR.8, at 8, para. 33; different marriageable ages for men and women, Rattray, E/C.12/r987/SR.9, at 9, para. 41; legislative measures to prevent dismissal of pregnant women, Mrachkov, E/C.12/r988/SR.IO, at 6, para. 25; differences between men and women in family law, Simma, E/C.12/r994/SR.8, at 8, para. 38. 102 Especially in relation to paid leave to look after children, e.g. Jimenez Butragueno, E/ C.12/r987/SR.12, at 4, para. 14. Texier, E/C.12/r987/SR.19, at IO, para. 47; or the enjoyment of parental benefits, Jimenez Butragueno, E/C.12/1988/SR.18, at 3, para. 12. Also in respect to widower's pension, e.g. Alvarez Vita, E/C.12/r993/SR.IO, at 8, para. 44. Unlike the Discrimination against Women Convention, the prohibited ground of 'sex' is not confined to the position of women. The presence of arts. 3 and IO confirms, however, that the position of women is of primary importance. 103 e.g. Simma, E/C.12/r987/SR.rr, at IO, para. 48. 104 e.g. Konate, E/C.12/r987/SR.rr, at 12, para. 58. This includes the expression of opposition to the established political views, Simma, E/C.12/r987/SR.13, at 8-9, para. 40; Alston, E/ C.12/1987/SR.19, at 9, para. 45. Cf Concluding observations on report of Germany, E/C.12/ 1993/17, at 2, para. 8. 105 Rattray, E/C.12/r990/SR.7, at 5, para. 16.

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directed itself to the situation of those in particular regional areas, 106 aliens, 107 (including the stateless,1°8 migrant workers, 109 and refugees 110) unmarried couples, and parents,m people with AIDS, 112 or physical113 and mental disabilities, 114 homosexuals, 115 the poor, 116 and the elderly. 117 It has to be borne in mind, however, that by asking questions on the situation with regard to such groups, the Committee is not necessarily attempting to discover elements of discrimination. It may instead merely be assessing the enjoyment of economic, social, and cultural rights. Thus de facto differences in the enjoyment of rights between different regions would not normally be considered a matter of discrimination. Nevertheless, in centering its attention on these social groups, the Committee appears to consider that possible additional grounds exist under which discrimination is prohibited, such as health, nationality, disability, poverty, age, and sexual orientation. Of these possible grounds, there would seem to be little reason to object to the inclusion of grounds such as health, 118 disability,11 9 or age. 12° Clearly, 106 e.g. The treatment of populations in overseas and dependent territories: Daudi, E/C.12/ 1987/SR.5, at 4, para. 15 (Netherlands Antilles); Badawi, E/C.12/r988/SR.8, at 2, para. 3 (Greenland and Faroe Islands); Mrachkov, E/C.12/r989/SR.12, at 13, para. 73 (French Overseas Territories). The position of rural populations: Mratchkov, E/C.12/1988/SR.7, at 6, para. 43; Sparsis, E/C.12/r988/SR.7, at 2, para. 2; Muterahejuru, E/C.12/r990/SR.2, at rr, para. 67. Poor urban populations: Texier, E/C.12/r989/SR.12, at IO, para. 50. 107 See below, text accompanying nn. 126-45. 108 e.g. Texier, E/C.12/r988/SR.IO, at 12, para. 66; Badawi El Sheikh, E/C.12/r988/SR.rr, at 3, para. 15. 109 e.g. Mratchkov, E/C.12/r987/SR.6, at 12, para. 61; Simma, E/C.12/1990/SR.34, at 4, para. 22; Konate, E/C.12/r992/SR.14, at 3, para. IO. 110 e.g. Taya, E/C.12/r988/SR.3, at 6, para. 27; Texier, E/C.12/r989/SR.8, at 5, para. 22; Texier, E/C.12iI990/SR.7. at 2, para. 5; Texier, E/C.12/r992/SR.18, at 9, para. 51. m e.g. Wimer Zambrano, E/C.12/r987/SR.n, at 12, para. 60; Texier, E/C.12/r989/SR 14, at 16, para. 70; Muterahejuru, E/C.12/r987/SR.12, at 3, para. 8. 112 e.g. Rattray, E/C.12/r987/SR.20, at 3, para. 10; Alston, E/C.12/r988/SR.9, at 5, para. 25; Texier, E/C.12/r990/SR.2, at ro, para. 56; Simma, E/C.12/1990/SR.34, at 5, para. 25. 113 e.g. Deaf children, Jimenez Butragueno, E/C.12/r990/SR.8, at 11, para. 52. See generally Draft General Comment on Persons with Disabilities, E/C.12/r993/WP.26. 114 See e.g. Jimenez Butragueno, E/C.12/r987/SR.20, at 4, para. 13. 115 e.g. Simma, E/C.12/r989/SR.16, at 18, para. 95. 116 e.g. Neneman, E/C.12/1988/SR.3, at 9, para. 43; Texier, E/C.12/1990/SR.16, at 9, para. 44. 117 e.g. Butragueno, E/C.12/r988/SR.14, at 3, para. 13; Simma, E/C.12/1988/SR.6, at 4, para. 18; Jimenez Butragueno, E/C.12/r990/SR.40, at 5, para. 71; Jimenez Butragueno, E/C.12/r992/ SR.14, at 2, para. 4. 118 Reaction to the discovery of HIV/ AIDS has entailed many instances of discrimination in the field of economic, social, and cultural rights. It is considered that denials of education, marriage, social services, and employment go far beyond those measures necessitated by the nature of the infection. See e.g. UN Doc. E/CN.4/Sub.2/1990/9, at 6-8, paras. 30-40; 'AIDS and Discrimination' ( 1988) 41 /CJ Rev. 35-49; Center for Human Rights, Report of an International Consultation on AIDS and Human Rights (1989). 119 See generally Standard Rules on the Equalization of Opportunities for Persons with Disabilities, GA Resn. 48/96 (20 Dec. 1993), 48 UN GAOR, Supp. (No. 49) (1993). Despouy L., Human Rights and Disability, UN Doc. E/CN-4/Sub.2/r991/31. 120 Vickers, supra, n. 4, at 52. See also UN Doc. E/C.12/r993/WP.21; and the discussion: E/ C.12/1993/SR.12.

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Article 2(2): Non-Discrimination this does not mean that all differences in treatment based upon such grounds are discriminatory. For example, it is accepted in a number of States that the elderly may be deprived of their right to work through compulsory retirement. 121 It does mean that differences justified on such grounds will be subjected to a stricter level of scrutiny than others. On the other hand, the posited grounds of sexual orientation, poverty, and nationality all present difficulties with respect to their inclusion which will be discussed below: (a) Sexual Orientation The acceptance of equality with regard to those with alternative sexual orientations is clearly subject to a great deal of controversy. Although homosexuality, for example, is tolerated in a number of countries, there remain a number of others in which it is a criminal offence. 122 Indeed, even in the most tolerant of States, there often remain considerable elements of both public and private discrimination against homosexuals. 123 In principle, there is no reason why the extent of a person's enjoyment of economic, social, or cultural rights should depend upon their sexual orientation. The problem for the Committee, as with other human rights bodies, 124 is whether there is sufficient moral consensus within which it may locate its position. This is not merely a trivial question as it is ultimately for the States parties themselves to decide the meaning of the terms within the Covenant. On a 'pragmatic' approach, if the Covenant were treated as a 'living instrument' with standards reflecting the current moral and legal developments among the States parties, 125 sexual orientation might be established as a prohibited ground for discrimination at some stage in the future. It is considered, nevertheless, that the Committee should take a principled approach and operate a strict level of scrutiny as regards all distinctions based upon sexual orientation on the basis that that consideration is not relevant to the enjoyment of economic, social, and cultural rights. 121 On this point see Alston, E/C.12/1991/SR.9, at 6, para. 24. ILO Recommendation No. 166 (1982) para. 5 (a) states that age alone cannot constitute a valid reason for termination of employment 'subject to national law and practice regarding retirement'. 122 The European Court of Human Rights however has recognized an increased tolerance of homosexual behaviour in the European context. Accordingly, it found the imposition of criminal sanctions to be in breach of the right to privacy under art. 8 of the ECHR. Dudgeon v. United Kingdom, Eur. Ct. HR, Series A, Vol. 45, judgment of 22 Oct. 1981 ( 1981) 4 EHRR 149; Norris v. Ireland, Eur. Ct. HR, Series A, Vol. 142,judgment of 26 Oct. 1988 (1988), (1991) 13 EHRR 186. 123 See Helfer L., 'Lesbian and Gay Rights as Human Rights: Strategies for a United Europe' (1991) 32 VJIL 157. 124 See Girard P., 'The Protection of the Rights of Homosexuals under International Law of Human Rights: European Perspectives' (1986) Can. HRY 3. 125 Cf. Tyrer v. United Kingdom, Eur. Ct. HR, Series A, Vol. 26, judgment of 25 Apr. 1978 ( 1979-80) 2 EHRR r.

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(b) Nationality With regard to nationality as a prohibited ground for discrimination, it should be noted that article 2(2) rules out discrimination on the ground of national origin but not on the basis of nationality. 126 Indeed article 2(3) specifically allows limitations to be placed upon the enjoyment of the rights of non-nationals in the case of developing States. 127 Lillich draws the conclusion that the ICESCR 'does not embody a general norm of non-discrimination against aliens' .128 However, an interesting 'interpretative declaration' was made by Belgium upon ratification: With respect to article 2, paragraph 2, the Belgian Government interprets nondiscrimination as to national origin as not necessarily implying an obligation on States automatically to guarantee to foreigners the same rights as to their nationals. The terms should be understood to refer to the elimination of any arbitrary behaviour but not of differences in treatment based on objective and reasonable considerations, in conformity with the principles prevailing in democratic societies. 129 While overtly intended to limit the scope of obligations as regards nonnationals, the declaration in fact confirms that the term 'national origin' may plausibly be read in a wide sense to include non-nationals. It then merely reiterates the idea that not all differences in treatment will necessarily amount to discrimination. 126 Whereas 'nationality' refers to the position of aliens and migrant workers, 'national origin' seems to relate to the ethnic or racial origin of the individual irrespective of their nationality. For a discussion of the differences between the terms see comments of Lord Simon in Ealing London Borough Council v. Race Relations Board (1972) AC 342, at 362-3. Cf Kartashkin V., 'Economic, Social and Cultural Rights' in Meron T. (ed.), Human Rights in International Law (1985) 111, at 131. Schwelb concurs in this view in commenting that 'national origin' relates to present and past 'nationality' in an ethnographic sense. He also comments that with respect to the term 'nationality' in its legal sense, only previous nationality is a prohibited ground for discrimination. Schwelb, supra, n. 57, at 1007. 127 It might be argued on the basis of art. 2(3) that this does not entitle developed countries to discriminate in such a manner and that in any case differentiations may not be made with regard to non-economic rights, Lillich R., The Human Rights of Aliens in Contemporary International Law, (1981) 47. The definition of economic rights in itself is unclear. It is assumed that they are rights 'that enable a person to earn a living or that relate to that process'. Dankwa E., 'Working Paper on Article 2(3) of the International Covenant on Economic, Social and Cultural Rights' (1987) 9 Hum. Rts. Q 230, at 240. Similarly, as McKean notes: 'the term "developing country" is not defined, and the language used is unconscienably vague. It must therefore be regarded as an unfortunate inclusion in a covenant of this nature and likely to cause invidious and unreasonable distinctions to be made against aliens on the ground of their foreign nationality': McKean, supra, n. 24, at 201. 128 Lillich continues however: 'It must be emphasised that this conclusion is not tantamount to stating that international law now authorises discrimination against aliens in these areas. All one may conclude is that this particular instrument is not in and of itself the source of such a general norm of non-discrimination': ibid. 48. 129 Multilateral Treaties Deposited with the Secretary-General as of 31 Dec. 1991. UN Doc. ST/LEG/SER.Elm. at 123 (1991).

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Some members of the Committee have tended to assume that any differentiation in treatment between nationals and non-nationals is principally illegitimate.U0 One member's interpretation of article 2(3) reinforces the view that the only exception to this rule is to be found in relation to economic rights in developing countries. 131 At times individual Committee members have limited their attention to the provision of social benefits, health care, and education, 132 but often they have gone further to include employment rights. 133 Criticism of such differential treatment has gone to the extent of finding violations in a number of cases. For example with regard to the French report, one member considered that the fact that a disabled adults allowance was only payable to French nationals was contrary to article 2. 134 Similarly, in the case of Costa Rica, it was considered that the restrictions upon the trade union rights of non-nationals constituted a violation of the Covenant. 135 Although these cases only represented the views of individual members, 136 the Committee as a whole has since expressed its concern about foreign workers being barred from holding trade union office in Senegal. 137 The reluctance of the Committee to be unequivocal in its defence of the equal treatment of aliens would seem to be a result of the force of State practice. 138 For example, many States reporting to the Committee operate different systems of social security in relation to non-nationals,13 9 General Guidelines, E/C.12/1991/1, at 2. It was commented with respect to a provision in the Austrian report (E/1984'6/Add.17, para. 49(b)) that if foreigners in Austria did not receive the same benefits as nationals, it would be contrary to art. 2(3) as it was not a developing country. Alvarez Vita, E/C.12/1988/SR.3, at 4-5, para. 13; Badawi El Sheikh, E/C.12/1988/SR.4, at 8, para. 45. 132 See e.g. Texier, E/C.12/1987/SR.12, at 5, para. 16. 133 One member commented thus that measures taken under Jordanian law to restrict the employment of foreigners were contrary to the non-discrimination clauses of the Covenant. Konate, E/C.12/1987/SR.7, at IO, para. 51. 134 Alvarez Vita, E/C.12/r989/SR.12, at 12, para. 61. This conclusion in itself was somewhat suspect given the French declaration on ratification regarding restrictions on aliens' rights to social security and employment. It was argued that the provision should be considered in the light of arts. 9 and 2 read together; as there was no declaration in respect to art. 2, there was a breach of the provisions of the Convention. Alvarez Vita, E/C.12/1989/SR.13, at 9, para. 38. That this did not represent the view of the Committee as a whole is reflected in the Committee's concluding observations which merely state that 'the observation was made'. UN Doc. E/ 1989/22, at 35, para. 160 ( 1989). 135 See Alvarez Vita, E/C.12/r990/SR.40, at 12, para. 52. 136 This was made particularly clear in the case of Costa Rica. Alston, E/C.12/r990/SR.50, at 4, para. 28. 137 Concluding observations on the report of Senegal, E/C.12/1993/r8, at 2, para. 8. 138 It might also be noted that the Committee on the Elimination of Racial Discrimination has tended to allow the differential treatment of non-nationals. Meron, supra, n. 13, at 312. Similarly, during the drafting of art. 26 ICCPR, States were not ready to accept that aliens should have equal rights as citizens. See Ramcharan, supra, n. r, at 263. 139 See e.g. Netherlands, E/C.12/r989/5, E/1989/22, at 4; Luxembourg, E/C.12/1990/CRP.4/ Add.4, at 5, para. 16. 130

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particularly where reciprocal agreements are in force. 140 In addition it is somewhat unlikely that States would consider themselves bound by a provision forcing them to eliminate any restrictions on the employment of aliens. 141 However, these facts alone do not necessarily imply that the application of the principle of non-discrimination is totally irrelevant. For example, in the majority of cases, differential treatment is justified on the basis of economics. 142 It is open to the Committee to determine the validity of the differential treatment of aliens by assessing whether it is motivated by sound economic reasons or mere prejudice. 143 In this respect one member of the Committee commented that the Jordanian report: seemed to indicate that foreigners were penalized solely because they were foreigners, rather than because they threatened the employment opportunities of Jordanian nationals-in short, that foreigners were the object of discrimination. 144

If this approach is adopted by the Committee, it could be said that even though equality of treatment is not necessarily prescribed, discrimination on the basis of nationality is by no means legitimate. The question for the Committee is to what extent differential treatment is legitimate. Moreover, even if non-nationals are not entitled to equal treatment in all respects, it is important to stress that this does not deprive them of all rights under the Covenant. Certainly, in so far as the Covenant establishes the rights of 'everyone', non-nationals would have a right to the enjoyment of the minimum core content of those rights. Thus, in practice, the Committee will censure situations where aliens enjoy few rights and are the object of exploitation. 145 140 Cf. Mahalic D. and Mahalic J., 'The Limitation Provisions of the International Convention on the Elimination of All Forms of Racial Discrimination' (1987) 9 Hum. Rts. Q 74, at 78. It might be difficult to establish then that a State must not discriminate against a particular nationality even if that were to be considered inequitable. See contra, Lerner N., The Convention on the Elimination of All Forms of Racial Discrimination (1980), 30. 141 However, immigration policies have not been above criticism, see Grissa, E/C.12/r993/ SR.24, at 12, para. 49. In this regard the Limburg Principles state that 'as a general rule the Covenant applies equally to nationals and non-nationals'. Limburg Principles, supra, n. 54, at 127, para. 42. Whereas restrictions are usually accepted on the employment of aliens, this is not so with respect to the conditions of employment. A number of ILO Conventions operate in this area: e.g. the Migration for Employment Convention (Revised) of 1949 (No. 97), 120 UNTS 71; and the Migrant Workers (Supplementary Provisions) Convention of 1975 (No. 143), 1120 UNTS 77. It might be noted that art. 1(2) of the Racial Discrimination Convention provides that its non-discrimination provisions do not apply to distinctions, exclustions, or restrictions made by a State party between citizens and non-citizens. 142 See Lillich, supra, n. 127, at 123. 143 It is by no means axiomatic that aliens are prejudicial to the economy of a State. See Konate, E/C.12/1987/SR.7, at 2, para. 2. Meron comments in this light: 'It can perhaps be argued that economic constraints may justify limiting some entitlements (such as welfare or health care) to citizens, but limiting employment-related benefits would not be supportable under this rationale': Meron, supra, n. 13, at 312. 144 Konate, E/C.12/r987/SR.7, at 2, para. 2. 145 Members of the Committee expressed great concern over the position of Haitian workers

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(c) Wealth The general limitations upon the poor to equality of access or opportunity with regard to employment, education, culture, or housing have led some commentators to regard 'wealth' as an additional ground upon which discrimination is prohibited. Hence the Czechoslovakian representative commented before the Committee that: The fact that some persons might be prevented from enjoying certain rights because they did not have the means to do so could be regarded as de facto discrimination. 146

The Committee does seem to be concerned about extreme inequalities in wealth147 and inadequate action being taken on behalf of the poor. 148 Recognition has also been made of the particular disadvantage of the poor in the area of access to culture. 149 Some members have occasionally made an express recognition of the link between poverty and discrimination. 150 The major problem with regard to positing 'wealth' as an independent ground of discrimination is that the majority of cases of such discrimination will involve a simultaneous violation of article 2( 2) and one of the substantive articles of the Convention. The independent utility of the non-discrimination provision becomes apparent only when the State has gone further than it is obliged to under the provisions of the Covenant. 151 A case in point might be the establishment of special schools for the academically gifted. If access to such a school were restricted to males only or members of a minority ethnic group, article 2(2) would quite legitimately be invoked. However, to restrict access to the wealthy by the requirement of fee payment would rarely be considered discriminatory. 152 The fact that access to many higher social 'goods' often depends upon economic wealth suggests that 'wealth' itself is often a legitimate ground for differential treatment and for that reason could hardly be considered 'suspect'. 153 One possible on sugar plantations in the Dominican Republic. See e.g. Texier, E/C.12/1990/SR.44, at 13, para. 54. 146 E/C.121I987/SR.12, at IO, para. 40. 147 Sparsis, E/C.12/1988/SR.12, at 12, para. 63; Sparsis, E/C.121I989/SR.16, at 17, para. 92; Simma, E/C.12/1990/SR.8, at IO, para. 43. Simma commented in relation to the Columbian report that the Committee had to address itself to the underlying causes of difficulties, mentioning 'in particular the lack of equality ... and the apparent lack of concern of the upper classes for the problems of the most vulnerable': E/C.12/1990/SR.13, at 11, para. 47. 148 See e.g. Alston, E/C.121I990/SR.11, at 5, para. 24. 149 See e.g. Texier, E/C.12/1990/SR.16, at 9, para. 44. 150 One member thus commented in regard to the vast disparities in wealth, that 'Santiago is a city of apartheid'. Texier, E/C.121I988/SR.12, at IO, para. 50. 151 Assuming that the right is 'autonomous' in nature. See below, text accompanying nn. 158-75. 152 This is a case of indirect discrimination. Were the discrimination to be direct i.e. on the basis of parental income irrespective of ability to pay (e.g. through a scholarship), there would be more grounds for objection. Additionally, if the establishment of such a school drew finances away from projects that were aimed at the relief of poverty and disadvantagement, the State might be criticized for confusing its priorities. 153 With respect to wealth classifications in the US see Polivou, supra, n. 3, at 437-44.

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justification for this could be that, unlike sex, age or race, wealth is not an immutable or inherent attribute of the human person and therfore may be excluded under the eiusdem generis principle. 2

The Suspect Nature of Classifications

Given the emphasis that race, 154 sex, 155 and religion 156 have been accorded on the international plane, it may be argued that, in assessing the legitimacy of differential treatment, actions based upon such grounds should be given stricter scrutiny. 157 This may be appropriate given the extraordinary prominence given to racial discrimination in international case law, 158 and the emphasis on sexual discrimination in the Covenant. 159 As far as the Committee is concerned the position of women has been given by far the most consideration. Questions are invariably asked about equality before the law, 160 equal rights, 161 and factual differences in the 154 For evidence of the international community's interest in racial discrimination see The International Convention on the Suppression and Punishment of the Crime of Apartheid, GA Resn. 3o68, 28 UN GAOR, Supp. (No. 30), at 166, UN Doc. A/9030 (1973), rn15 UNTS 243; The Declaration on the Elimination of All Forms of Racial Discrimination, GA Resn. 1904, 18 UN GAOR, Supp. (No. 15), at 35, UN Doc. A/5515, (1964); The Convention on the Elimination of all Forms of Racial Discrimination, supra, n. 55. 155 For evidence of the interest of the international community in the status of women see The Convention on the Political Rights of Women, GA Resn. 640, 7 UN GAOR, Supp. (No. 20), at 27, UN Doc. A/2361 (1952), 193 UNTS 135 (1953); The Convention on the Nationality of Married Women (1957), 309 UNTS 65; The Declaration on the Elimination of All Forms of Discrimination Against Women, GA Resn. 2263, 22 UN GAOR, Supp. (No. 16). at 35, UN Doc. A/6716, (1967); The Convention on the Elimination of all Forms of Discrimination Against Women, supra, n. 56. 156 Bayefsky, supra, n. 13, at 19. See generally Benito E., Elimination of All Forms of Intolerance and Discrimination Based on Religion and Belief(1989). 157 For the US practice as regards levels of scrutiny see Moon, supra, n. 6, at 688-9. For the position under the ECHR see Abdulaziz, Caba/es and Balkandali v. United Kingdom, Eur. Ct. HR, Series A, vol. 94, judgment of 28 May 1985 (1985) 7 EHRR 471, where the court stated (para. 78): 'the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference of treatment on the grounds of sex could be regarded as compatible with the Convention.' 158 Judge Tanaka commented in the South West Africa Cases that 'we consider that the norm of non-discrimination or non-separation on the basis of race has become a rule of customary international law', supra, n. 9, at 293. Moreover in its advisory opinion in the Namibia Case the ICJ stated 'to enforce distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent, or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter.' Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council 276 (r970), Advisory Opinion (1971) !CJ Rep. 3, at 57. Similarly the ICJ has indicated that rules concerning racial discrimination have a force erga omnes. Barcelona Traction Light and Power Case, (1970) !CJ Rep. at 3, paras. 33-4. 159 In addition to the mention of discrimination on the grounds of sex in art. 2(2), art. 3 mentions the equal rights of women, and art. 7(a)(i) the right of women to equal conditions of 160 See above, n. 79. work. 161 See e.g. the right of women to chose their own spouse, Rattray, E/C.12/r987/SR.8, at 7,

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position of women in relation to men. 162 In a number of cases the Committee as a whole has expressed its concern over the position of women. 163 To this extent, the Committee could be said to exercise a particularly strict test as to differentiations de jure and de facto on the basis of sex. The main failing of the Committee thus far is that it has not established any clear test for evaluating differences in treatment upon the grounds enumerated in article 2(2). It is submitted that in so far as the list of prohibited grounds is open-ended, virtually any difference in treatment is open to scrutiny by the Committee. The virtue of having specifically stated grounds, however, is not to prevent review of differentiations on other grounds, but rather to establish that certain classifications are prima facie suspect and therefore will be subject to more detailed scrutiny. As an initial step, then, it would be necessary for the Committee to establish what classifications it sees as falling within the realm of article 2(2), and the test by which State action will be reviewed. D The Scope of the Non-Discrimination Provision

Some guarantees of non-discrimination only operate in relation to specific, narrowly defined areas, as in the ILO or UNESCO Conventions (which relate to employment and education). Article 2(2) of the ICESCR, in contrast, applies to a much broader range of rights. It provides that the guarantee of non-discrimination should operate in relation to all the economic, social, and cultural rights in the Covenant. However, by specifically referring to the rights in the Covenant, article 2( 2) would appear to be a partially subordinate provision, prohibiting discrimination only in so far as it relates to matters covered by those rights. 164 Indeed, there is little para. 26; Kouznetsov, E/C.12/r990/SR.2, at 12, para. 72.; the authority to start a business or open a bank account, Jimenez Butragueno, E/C.12/r989/SR.9, at 6, para. 24; differential retirement ages, Sviridov, E/C.12/r987/SR.6, at 5, para. 18. Simma, E/C.12/1988/SR.3, at 3, para. 8; the right to administer their own assets, Jimenez Butragueno, E/C.12/r987/SR.8, at 8, para. 33; restrictions on the employment of women, Alvarez Vita, E/C.12/1987iSR.6, at II, para. 53; the right to travel abroad, Vysokayova, E/C.12/r994/SR.rr, at 3, para. 9. 162 See e.g. the number of women unemployed, Rattray, E/C.12/1987/SR.6, at 12, para. 66. Neneman, E/C.12/r987/SR.7, at 7, para. 29; access of women to social security, Rattray, EiC. 12/ 1987/SR.6, at 13, para. 69; the proportion of women receiving technical training, Konate, E/ C.12il987/SR.7, at 2, para. 3; the percentage of women employed in the public sector, Muterahejuru, E/C.12/r987/SR.7, at 3, para. 7; the proportion of women in higher education, Jimenez Butragueno, E/C.12/r988/SR.3, at 8, para. 36; the percentage of women in management positions, Simma, E/C.12/1994/SR.8, at 8, para. 38; the existence of training and support for women's cooperatives, Simma, E/C.12/r989/SR.6, at rn, para. 45. 163 See e.g. Concluding observations on report of Iran, E/C.12/r993/7, at 3, para. 6. 164 Art. 3 similarly relates to 'all economic, social and cultural rights set forth in the present Covenant'. As a matter of comparison, it is thought that the ICCPR non-discrimination clause is limited to those rights recognized by that Convention. Ramcharan, supra, n. 1, at 257. This is also the practice of the European Court of Human Rights. Thus in the Sunday Times Case, Eur. Ct. HR, Series A, Vol. 30, judgment of 26 Apr. 1979 (1979-80) 2 EHRR 245, the Court

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Non-Discrimination and Equality evidence to suggest that article 2(2) was intended to be wholly 'freestanding' or 'autonomous', in the sense of article 26 of the ICCPR. 165 According to the traditional definition of discrimination adopted by a number of international treaties, the test for whether an action is discriminatory can be determined by whether it has a negative effect on the realization of the rights protected. For discrimination to have occurred, the difference in treatment must have the effect of 'nullifying' or 'impairing' 166 the recognition, enjoyment, or exercise 167 of human rights. To the extent that breach of the non-discrimination provision will inevitably involve a simultaneous violation of one of the substantive articles, the provision could be said to be superfluous. 168 Three arguments mitigate against such a conclusion. First, even though there is often distinct correlation between covert discriminatory situations and general social stratification of power, wealth, prestige, and education, it is important to recognize that discrimination is not merely a consequence of that stratification, but also a cause. 169 As such the recognition and elimination of discrimination is central to the improvement of the well-being of such groups. Secondly, recognition of historical discrimination can serve to justify and even require positive and affirmative action programmes. 170 Finally, to the extent that the principle of non-discrimination may give rise to claims to positive State action in the realization of equality of reaffirmed that 'Article 14 safeguards individuals, or groups of individuals, placed in comparable situations, from all discrimination in the enjoyment of the rights and freedoms set forth in the other normative provisions of the Convention and Protocols'. 165 Art. 26 ICCPR has been interpreted as operating as an 'autonomous right' whose application was 'not limited to those rights which are provided for in the Covenant', see General Comment 18/37, supra, n. 57, para. 12. Thus, in practice, the HRC has dealt with matters outside the strict context of civil and political rights, see e.g. Broeks v. Netherlands, 2 Selected Decisions HRC, 196 (1987). Cf Scott C., 'The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights', (1989) 27 Osg. HU 769, at 851-9; Opsahl T., 'Equality in Human Rights Law with Particular Reference to Article 26 of the International Covenant on Civil and Political Rights', in Nowak M., Steurer D., and Tretter H. (eds.), Progress in the Spirit of Human Rights (1988), 51.

166 ILO Convention, the Racial Discrimination Convention, and the Discrimination against Women Convention. The UNESCO Convention only includes the term 'impairing'. On the basis that 'nullifying' is the narrower term, meaning not merely a restriction on the enjoyment of a right, but the total denial of that right, 'impairment' can be said to cover the same field. 167 The meaning of all of these three terms is unclear, particularly as to any differences between them. It is presumed that 'recognition' refers to the legal enactment of individual rights. Any de jure differentiation on a suspect ground would be discriminatory under this leg of the definition. 'Enjoyment' can be said to refer to the de facto realization of the rights in the Covenant. Finally 'exercise' perhaps relates most closely to the ability of each individual to enforce their rights through judicial or administrative remedies. 168 Flew argues in this respect that the relief of poverty cannot be achieved through the promotion of equality but solely through growth and the production of wealth. Equality and non-discrimination thus retain little justification in his view. Flew A., supra, n. 17, at, 182-9. 170 Ibid. 295. 169 Schachter, supra, n. 19, at 296.

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179

opportunity, the fulfilment of basic needs alone would not necessarily sufficiently dispose of State obligations with respect to disadvantaged groups. The position under the European Convention is interesting in this regard. That a violation can occur merely by the discriminatory exercise of a particular right has been recognized by the European Court in the Belgian Linguistic Case 171 where it held with respect to the ECHR: Article 6 of the Convention does not compel States to institute a system of appeal courts. A State which does set up such courts consequently goes beyond its obligations under Article 6. However it would violate that Article, read in conjunction with Article 14, were it to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of actions. 172

The Court appears to want to give the non-discrimination provision a degree of independence without implying that it operates outside the realm of the rights contained within the Convention. 173 Certainly, the Court has not been willing to deal with economic, social, and cultural rights for example. There is evidence to suggest that article 2(2) is a strictly 'subordinate' non-discrimination clause. As a provision that lies in Part II of the Covenant, it may be viewed not as a right in itself, but rather a 'service provision', outlining obligations in relation to the substantive articles in Part III. Moreover, as it refers to the 'rights enunciated in the present Covenant', it may be limited in that respect. 174 However, neither of these factors Supra, n. 47. This passage has been interpreted variously by commentators. Dinstein argues that the court implied that the non-discrimination provision was free standing-that there could be a violation of art. 14 without there being a corresponding violation of any other art. Dinstein, supra, n. 13. On the other hand Bayefsky comments that this case underlines the fact that the discrimination clause has no independent existence in that the violation only occurred in conjunction with the substantive arts. Bayefsky, supra, n. 13, at 4. It is interesting to note the view of Judge Fitzmaurice in the National Union of Belgian Police Case, Eur. Ct. HR, Series A, Vol. 19, Judgment of 27 Oct. 1975 (1979-80) 1 EHRR 578, where he argued that art. 14 was subordinate in that it only applied in so far as it related to a State obligation under the ECHR. 173 This is underlined by its decision in Inze v. Austria, where it stated: 'Art. 14 complements the other substantive provisions of the Convention and its protocols. It has no independent existence, since it has effect solely in relation to the "rights and freedoms" safeguarded by those provisions. Although the application of art. 14 does not presuppose a breach of one or more of such provisions-and to this extent it is autonomous-there can be no room for its application unless the facts of the case fall within the ambit of one or more of the latter': supra, n. 69, para. 36. 174 In its General Comment No. 18 (37) b/, c/, the Human Rights Committee implies that art. 2( 1) ICCPR is indeed subordinate. In referring to art. 26 it states that it 'does not merely duplicate the guarantee already provided for in art. 2 but provides in itself an autonomous right.' As a result 'the principle of non-discrimination contained in art. 26 is not limited to those rights which are provided for in the Covenant': supra, n. 57, at 175, para. 12. 171

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establishes whether or not the rather looser form of subordination adopted by the European Court will operate in the case of article 2(2). Despite references to articles 2(2) and 3 as independent rights, 175 there is little evidence to suggest that the Committee views article 2(2) as fully autonomous in the sense of article 26 of the ICCPR. 176 Indeed any reference to violations of civil and political rights has been justified by their impact on economic, social, and cultural rights. 177 Given the more extensive supervisory mechanisms of the HRC, it would be unnecessary and duplicitous for the CESCR to enter into a review of discrimination in the field of civil and political rights. On the other hand, several considerations suggest that the Committee is not ready to assign a strictly subordinate role to article 2(2 ). First, in dealing with questions of discrimination the Committee has not confined itself to rights explicitly laid down in the Covenant. 178 Secondly, it has clearly interpreted the notion of non-discrimination as one which calls for equality of access and opportunity. 179 It is this notion of equality, as noted above,1 80 that has coloured the Committee's general approach to the implementation of the rights. To see non-discrimination as an objective as opposed to a procedural principle is to confer upon it an individual status. The approach of the Committee would seem to be close to that of the European Court. While it will not concern itself with matters that do not fall within the general scope of economic, social, and cultural rights, it will not confine itself to combatting discrimination only in those areas where a violation of the substantive rights occurs. It is submitted that this is a suitable and balanced approach. To extend the scope of the provision beyond economic, social, and cultural rights would not only lead to possible conflicts with other human rights organs, but would impose too great a burden of work upon the Committee. On the other hand, to restrict 175 This might be the inferred from the grouping of such provisions together with the substantive rights in General Comment No. 3, ESCOR, Supp. 3, Annex III, at 84, para. 5, UN Doc. E/C.12/I990/8 (1991). 176 Members of the Committee have, however, asked questions relating to civil and political rights, see Simma, E/C.12/1994/SR.8, at 6, para. 27. 177 See e.g. Simma, E/C.12/I990/SR.42, at 12, para. 57. 178 e.g. the Committee has considered questions such as: the authority of women to start a business or open a bank account, Jimenez Butragueno, E/C.r21I989/SR.9, at 6, para. 24; differential retirement ages, Sviridov, E/C.12/r987/SR.6, at 5, para. 18, Simma, E/C.12/1988/ SR.3, at 3, para. 8; the right of men to paid leave to look after children, Jimenez Butragueno, E/C.12/1987/SR.12, at 4, para. 14, Texier, E/C.12/1987/SR.19, at IO, para. 47; persecution of the Baha'is, Alvarez Vita, E/C.r21I990/SR.42, at II, para. 56. 179 In the Committee's guidelines, reference is made to equality of opportunity in relation to art. 6, and equality of access with regard to arts. r r and 13. Supra, n. 58. Meron comments that the Committee on the Elimination of Racial Discrimination has dealt with distinctions on the grounds of race in a similar manner. He concludes that 'the "common law" of the Convention is based on the notion of equality, rather than on its definition of racial discrimination'. Meron, supra, n. 13, at 291. 180 See above, text accompanying nn. 28-31.

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the provision to a subordinate status would deprive it of any substantive value. V. STATE OBLIGATIONS

A Immediate or Progressive Implementation?

Whereas the obligation under article 2(1) of the ICESCR is progressive in nature, this does not seem to be the case with regard to article 2(2 ). The fact of its physical separation from article 2( 1) and the inclusion of the word 'guarantee' draw one to the conclusion that States are under an obligation to eliminate discrimination immediately. 181 This was the interpretation advocated during the drafting of the Covenant, 182 and has been endorsed in the Limburg Principles, 183 and in the practice of the Committee. The Committee expressly stated that it considered articles 2(2) and 3 as being 'capable of immediate application by judicial and other organs in many national legal systems' .184 It would seem quite apparent that States are capable of eliminating most de jure discrimination immediately. There is certainly little justification for introducing new legislation or administrative practices that are discriminatory.185 The most important factor appears to be the contention that the elimination of de jure discrimination does not involve significant economic expenditure. Thus in the case of Zai"re, which was criticized for having a law that required women to ask permission from their husbands to work outside the home, it was felt that the question of economic development was irrelevant. 186 Klerk argues that, even in times of economic crisis, 'the introduction or the continuation of discriminatory practices can never be "compatible with the nature of these rights"'. 187 Accordingly, the promotion of the general welfare cannot be achieved at the expense of one section of 181 Klerk argues this point from the fact that the progressive implementation provision of art. 2(1) only applies to the substantive art. in part III. Art. 2(2) is not subordinate to the other provisions in Part II. Klerk, supra, n. 12, at 261. 182 The Lebanese proposal to include the word 'guarantee' was preferred to that of the representative of France, which provided for progressive implementation. 8 UN ESCOR (274th mtg), at 13, UN Doc. E/CN.4'SR.274, (1952). A proposal to amalgamate the first two para. of art. 2 (UN Doc. A/C.3/L.rn54 and Add.I, (1962)) was considered unacceptable in the Third Committee. 17 UN GAOR, C.3, (1206th mtg), paras. rn-13, II UN Doc. A/C.3/SR.1206 (1962). 183 Para. 35 reads: 'Art. 2(2) calls for immediate application and involves an explicit guarantee on behalf of the States parties. It should, therefore, be made subject to judicial review and other recourse procedures': supra, n. 54, at 127. 184 General Comment No. 3, supra, n. 175, at 4, para. 5. 185 Klerk, supra, n. 12, at 262; This was also the conclusion of the Third Committee, 17 UN GAOR, Annex, (Ag. Item 43), para. 64, UN Doc. A/ 5365 (1962). 187 Klerk, supra, n. 12, at 263. 186 See Texier, E/C.12/1988/SR.17, at 6, para. 36.

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Non-Discrimination and Equality society. 'Non-discrimination is not a favour that can be granted only in a time of a growing economy.' 188 However, it would be wrong to suggest that the elimination of discrimination will always be capable of being achieved immediately. First, it is undoubtedly true that certain forms of corrective action will inevitably involve considerable financial expenditure. For example, the elimination of discrimination as regards retirement ages or remuneration in employment 189 may involve employees being paid more for longer periods of time. Secondly, whereas de jure discrimination may be eliminated by the creation and enforcement of relevant legislation, the existence of de facto discrimination, as evidenced through material inequalities and individual prejudice, is a matter that necessitates longer-term social and educational programmes aimed eliminating discrimination in a progressive manner. 190 It is relevant to note here that the specialized instruments on discrimination all imply that States are entitled to eliminate discrimination gradually.191 This conclusion is more evident in so far as States are required to combat discrimination by third parties, and to achieve equality of opportunity. B The Type of Action Required As regards defacto discrimination, 192 legislative action must be considered a necessary first step in any policy. Members of the Committee have looked towards legislative measures as evidence of a State's commitment to eliminating discrimination. 193 Thus one member commented that: The Covenant did not automatically imply that legislation was an indispensable component of a policy designed to eliminate discrimination in employment, for example. However, it was evident that, if that were the interpretation adopted by Governments, the burden of proof would lie with those Governments, which would therefore be expected to show that the non-legislative measures that they had taken 189 See below, Ch. 6. Klerk, supra, n. 12, at 264. Cohen has drawn a similar distinction. He sees action to eliminate elements of discrimination in policies, programmes, procedure, and criteria as 'corrective action'; whereas action to give disadvantaged groups equal standing with the majority he calls 'compensatory action'. Cohen C., 'Affirmative Action and the Rights of the Majority', in Fried L., Minorities: Community and Identity (r983), 353, at 355. 191 ILO Convention, art. 2; UNESCO Convention arts. 3 and 4; and Conv. EDA W, art. 2. ICERD art. 2(r) also appears to allow for progressive implementation, but in art. 5 requires States parties to 'guarantee' equality before the law. Cf. Yilmaz-Dogan v. Netherlands, CERD Report, 43 UN GAOR, Supp. (No. r8), at 59 (1988). 192 Action to combat de jure discrimination merely involves repealing the offending legislation or administrative directive. See e.g. Jimenez Butragueno, E/C.12/r990/SR.42, at 16, para. 86. 193 Questions have been asked as to the legal prohibition of discrimination against women, Jimenez Butragueno, E/C.12/1987/SR.7, at 6, para. 23; and legislative measures taken to prevent dismissal of pregnant women, Mrachkov, E/C.r2/r988/SR.ro, at 6, para. 25. 188 190

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State Obligations effectively ensured the elimination of discrimination and that it was not essential to take legislative measures. 194

It is evident that any legislative measures taken, to be effective, should be

accompanied by judicial remedies. 195 The provision of such remedies seems to be particularly appropriate given the duty to 'guarantee' the exercise of the rights without discrimination. Although legislation is certainly important, it will not necessarily be completely effective. As suggested above, those aspects of discrimination which relate to social attitudes cannot be eliminated immediately merely through the enforcement of relevant legislation. Here, other measures, particularly educational and social, are more appropriate. 196 It has been suggested in the Committee that States are expected to undertake programmes to combat the discriminatory attitudes and prejudices of the population.197 In particular, action should be directed towards the elimination of stereotypes whether racial, religious, sexual, or other. 198 The need to take measures beyond legislative action is particularly evident in the pursuit of equality of opportunity. Inequality of opportunity is often the result of inequality in the economic condition of various groups in society, of social and cultural expectations that affect potential development, or of differences that result from the education and training received. Thus action in favour of real equality of opportunity calls for extensive measures in the whole field of economic, social, and cultural rights, particularly as regards education, vocational training, and social promotion and protection. 199 As one member of the Committee recognized: There was ... a need to transcend the formal approach to equality in order to gain insight into the obstacles to equality in daily life, and the arrangements made through education, for instance, to make sure that equality really was achieved. 200 194 Alston, E/C.12/r987/SR.6, at 3, para. 8. In its draft General Comment on Persons with Disabilities the Committee comments that 'comprehensive anti-discrimination legislation in relation to disability would seem to be indispensable in virtually all States parties', supra, n. 98, at 5, para. 16. 195 Members of the Committee have thus asked inter alia: what penalties are provided for violations of non-discrimination laws in employment, Simma, E/C.12/1989/SR.15, at 2, para. 3; how many decisions have been made regarding discrimination in housing, Rattray, E/C.12/ 1990/SR.2, at rr, para. 63; What effective remedies exist in the courts for women, Jimenez Butragueno, E/C.12/1988/SR.19, at 4, para. 12. 196 A memorandum of the Secretary-General recognized that: 'It is clear that forms of discrimination which deny legal rights may and should be fought by legal measures, while those which comprise merely social treatment must chiefly be fought by education and by other social measures': UN Doc. E/CN.4/Sub.2/8, at 2 (1947). 197 See e.g. Alvarez Vita, E/C.12/1988/SR.14, at 6, para. 32. 198 See e.g. Jimenez Butragueno, E/C.12/1990/SR.16, at 8, para. 37. See also Valticos N., International Labour Law (1979), rrr. 199 See e.g. Concluding observations on report of Iceland, E/C.12/1993/15, at 3, para. 8. 200 Rattray, E/C.12/1987/SR.16, at 9, para. 40.

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Non-Discrimination and Equality This requires not only the removal of any impediments that way stand in the way of equality of opportunity, 201 but also that certain positive steps are taken to promote the position of vulnerable and disadvantaged groups in society. The degree to which such affirmative action is necessary will be discussed below. It is clear nevertheless that legislative measures alone will not be sufficient in such cases. 202 C Affirmative and Protective Action I

The Legitimacy of Affirmative Action

The concept of discrimination in international law, while requiring strict scrutiny of any differential treatment based upon a suspect classification, does not automatically prohibit differential treatment if justified by some socially relevant objective. 203 Affirmative action programmes,204 involving the adoption of special measures to benefit socially, economically, or culturally deprived groups, may therefore be considered legitimate in so far as they are aimed at promoting the social well-being of such groups. 205 Further, the principle of equality of opportunity in its strong sense may actually be seen to require preferential treatment for groups which currently suffer from de facto inequality. 206 Despite no reference to affirmative action in the text of the Covenant, it is clear from the travaux preparatoires that such measures were not intended to be considered discriminatory. During the drafting of the Covenant, India suggested that an explanatory paragraph should be included in See e.g. Jimenez Butragueno, E/C.12/r991/SR.4, at 13, para. 67. See e.g. Texier, E/C.12/1989/SR.10, at 8, para. 43. 203 See Mckean, supra, n. 24, at 288. 204 Other terms for the same concept are 'reverse discrimination' or 'positive discrimination'. The term 'affirmative action' is preferred, as technically, such measures do not amount to discrimination as defined in this work. 205 Moon comments that classifications which benefit disadvantaged groups should not be precluded as they are 'not motivated by prejudice which is what the test of strict scrutiny is designed to detect'. Supra, n. 6, at 691. On the justification for affirmative action see Dworkin R., Taking Rights Seriously (1977), 227-9; Nickel J., 'Discrimination and Morally Relevant Characteristics' in Gross B., Reverse Discrimination (1977), 288; Tur R., 'Justifications of Reverse Discrimination' in Stewart M., Law, Morality and Rights (1979), 259. 206 See above, text accompanying nn. 18-20. Goldstein argues that 'even in the unusual cases in which equality requires differential treatment, it is still limited to that: i.e., differential, not preferential, treatment is required.' Goldstein S., 'Reverse Discrimination-Reflections of a Jurist' (1985) 15 Isr. YHR 28, at 30. It is unclear exactly what he means by such a distinction as it might be argued that any difference in treatment involves some form of preference. A more valid distinction could be drawn between differences in treatment that are intended to promote a vulnerable group in a general sense and those that aspire to achieving some numerical representation. The latter aspires to a form of absolute equality, whereas the former may be so constructed to allow for the intercession of individual choice, presenting less of a restriction upon the rights of members of the majority. 201 202

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State Obligations

the text of article 2 specifying that: 'Special measures for the advancement of any socially and educationally backward sections of society shall not be construed as 'distinction' under this article'. 207 It was explained that the principle of non-discrimination: raised certain problems in the case of the particularly backward groups still to be found in many under-developed countries. In his country, the constitution and the laws provided for special measures for the social and cultural betterment of such groups; measures of that kind were essential for the achievement of true social equality in highly heterogeneous societies. He felt certain that the authors of the draft Covenant had not intended to prohibit such measures, which were in fact protective measures .... He therefore thought it essential to make it clear that such protective measures would not be construed as discriminatory within the meaning of the paragraph. 208

The proposal was finally withdrawn, it having been made clear that the three-power amendment implicitly included this understanding. 209 On an analysis of the travaux preparatoires of both the ICESCR and the ICCPR, Thornberry concludes that 'the concept of affirmative action ... is not contrary to the law of the Covenants'. 210 He goes on to point out that since article 1(4) of ICERD and article 4(1) of Conv. EDA W211 do contain explicit statements about the legitimacy of affirmative action measures, a contrary interpretation in the context of the Covenants would display an 'extraordinary lack of congruence'. 212 Even if the travaux preparatoires do recognize the legitimacy of affirmative action, there is little indication outside the scope of article 3213 that such positive measures are in fact required. Facing a similar situation as regards the ICCPR the Human Rights Committee has made a positive statement in 207 UN Doc. A/C.3/SR. rr82, para. 17 (1962). As an alternative he sought the insertion of an explanatory statement in the report. Similarly, a Belgian proposal (UN Doc. A/C.3/L.1030 (1962)) to add a clause to art. 2(2). explaining that the prohibition did not extend to protective measures taken on the basis of age and sex, was withdrawn on the basis that this was understood in the terms of the three-power amendment. UN Doc. A/C.3/SR.1204, para. 29 (1962). 208 UN Doc. A/C.3/SRII83, paras. 12, 29 (1962). It was clear however in speaking of 'protective measures' the Indian representative, in commenting that such measures were essentially temporary, meant affirmative action. UN Doc. A/C.3/SR.1257, para. 18 (1963). 209 This is the import of the discussion over the use of the term 'discrimination' as opposed to 'distinction'. See above, text accompanying nn. 41-5. During the drafting of art. 27 ICCPR, relating to the rights of minorities, it was recognized that differential treatment might be granted to them to ensure real equality of status with the other elements of the population. UN Doc. A/2929, supra, n. 93, at 181. 210 Thornberry P., International Law and the Rights of Minorities (1991), 284. 211 The Committee on the Elimination of Discrimination against Women has recommended that 'States Parties make more use of temporary special measures such as positive action, preferential treatment or quota systems to advance women's integration into education, the economy, politics and employment'. General Recommendation 5, (7th Sess. 1988), at 109, UN Doc. A/43/38 (1988). 213 See UN Doc. A/C.3/SR.II82, para. II (1962). 212 Ibid.

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this regard. In its General Comment 18/37 it stated that the 'principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant'. 214 On this basis, commentators have argued that States are indeed obliged to take affirmative action for the benefit of disadvantaged groups. 215 The Committee has directed a number of questions towards affirmative action especially as regards people with physical disabilities 216 and ethnic or racial minorities. 217 In doing so it seems to accept the legitimacy of such action even if there has been a residual concern over its ultimate purpose. 218 Nevertheless, it has not explicitly recognized the obligatory nature of affirmative action. It could be argued that the Committee implicitly recognizes such an obligation through its requirement that States concentrate upon the situation of vulnerable and disadvantaged groups in society,219 but this is nevertheless a matter that ideally should be made clear in a future General Comment. 2

The Form of Affirmative Action

A few general remarks could be made about the possible form and content of affirmative action programmes with respect to economic, social, and cultural rights. It is clear that affirmative action can take a number of different forms. 220 At one level it might merely involve the provision of special benefits to disadvantaged groups such as advice, training, housing, or food. This is quite uncontroversial; most States operate some form of redistributive process in which certain groups in society are identified as being legitimate recipients of special treatment or benefits (for example, the poor, the elderly, and the sick).221 Indeed, as noted above, a basic level of 214 General Comment 18/37, supra. n. 57, para. IO. See also ILO Convention, art. 2; UNESCO Convention, art. 4; ICERD, art. 2(2); Conv. EDAW, art. 3. 215 See e.g. Ramcharan, supra, n. r, at 26r. 216 See e.g. Jimenez Butragueno, E/C.r2/r989/SR.r5, at 4, para. r5; Fofana, E/C.12/1990/ SR.II, at 4, para. r9; ibid., E/C.r2/r99r/SR.4, at r2, para. 64. 217 Questions have been asked as to: measures taken to ensure ethnic balance in schools, Badawi El Sheikh, E/C.r2/r989/SR.IO, at IO, para. 59; special treatment given to racial minorities in employment, Wimer Zambrano, E/C.r2/r987/SR.20, at IO, para. 45; special measures taken to ensure respect for cultural life of the gipsy community, Texier, E/C.r2/r988/SR.r4, at 7, para. 4r; Alvarez Vita, E/C.12/r991/SR.rr, at 13, para. 75. 218 See e.g. alarm expressed at preferential treatment given to families of war veterans in provision of scholarships, Jimenez Butragueno, E/C.r2/r993/SR.IO, at 8, para. 30. 219 As noted above, this conclusion depends upon whether the action is seen to be directed towards the realization of the rights themselves or at achieving equality of opportunity. See above, text accompanying nn. 30-r. A more explicit statement is to be found in the Draft General Comment, supra, n. 98, at 5--6, paras. 17-18. 220 See Gross B., Discrimination in Reverse: Is Turnabout Fair Play? (1978), at 18. 221 Goldstein accedes to this which he considers as an integral part of the political process, supra, n. 2o6, at 3 r.

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State Obligations

redistribution is itself necessitated by any process aimed at the realization of the rights in the Covenant. At another level affirmative action might take the form of quota systems in public employment, education, or employment training. 222 It is argued that quota systems, which envisage the distribution of social goods on the basis of suspect classifications, discriminate against those who are deprived of employment, for example, as the result of a requirement of numerical representation. 223 They are further criticized for serving to disadvantage other vulnerable groups that have similar claims to equality of opportunity,224 for actually contributing to hostility and resentment between social groups,225 and for failing to take into account the fundamental element of individual choice. The operation of quota systems may be justified, however, on the basis that the advancement of a particular group is as socially relevant a reason for the distribution of social goods as, for example, capacity and merit. 226 That is does envisage a form of equality of result is itself not conclusive, as that is an inevitable element of any action directed towards the achievement of a real, rather than a merely formal, equality of opportunity. Articles 7(c) and 13(2)(c) appear to rule out the possibility of quotas being imposed in the contexts of promotion in employment and access to higher education. Article 7( c) stipulates that everyone should have equal opportunity to be promoted in employment 'subject to no consideration other than those of seniority and competence'. Similarly, article 13(2)(c) provides that higher education shall be made equally accessible to all 'on the basis of capacity'. Both articles seem to prohibit advantages being given on other grounds, however socially desirable. A case could be made, nevertheless, for the operation of quota systems in each case on the basis that the terms of articles 7(c) and 13(2)(c) are open to 'progressive achievement'. Thus, a system in which a proportion of places in higher education is set aside for students of a particular group could be justified if it could be shown that it would ultimately contribute to the achievement of equal access on the basis of capacity at some stage in the future. Even then, that wider concerns of social utility could not be used as justificatory evidence means that the possibilities for imposing quotas with respect to higher education and employment are strictly limited. Members of the Committee have given little indication of what forms of positive measures they consider to be legitimate. Recognition has been given to of a wide range of training and fiscal measures227 but no objection 222 223 224

226 227

See e.g. in the US, Bakke v. Regents of the University of California, 483 US 265 ( 1978). Cohen, supra, n. 190, at 356; Schachter, supra, n. 19, at 295. 225 Schachter, supra, n. 19, at 305. Goldstein, supra, n. 2o6, at 39. Dworkin, supra, n. 205, at 227--9. Questions have been asked inter alia as to: subsidies to allow poor access to cultural life,

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has as yet been made regarding the imposition of quotas. 228 It is submitted that the Committee should at least assess the nature and extent of any affirmative action measures by reference to the purpose for which they were instituted. Not only should such action conform to the necessity of promoting equality of opportunity, its extent should also be proportionate to the measure of existing disadvantagement. Consideration should thus be given to other possible courses of action that do not involve the apportionment of benefits on the basis of 'suspect classifications'. The imposition of quotas might be justified as a measure to remedy a particularly urgent situation of disadvantagement that is closely associated with de facto discrimination against one social group. It should be remembered, nevertheless, that such affirmative measures are to be instituted as a temporary expedient, and should not form part of a permanent strategy.

3 A Case of Affirmative Action: Minority Groups The question of affirmative action is particularly problematic with regard to ethnic and racial minorities. 229 On the one hand the social marginalization of such groups may require their being integrated within, or at least not excluded from, the State-development process. 230 On the other hand, the need to maintain their cultural independence and self-determination argues in favour of positive measures to ensure development as separate entities. This tension was apparent during the drafting of article 27 of the ICCPR in a discussion on whether the obligations in respect of minorities were positive or merely negative. 231 There is no provision within the Covenant that specifically requires States to take positive measures to protect or promote the rights of minorities. 232 It does arguably recognize the different needs of ethnic minorities particuNeneman, E/C.12/1988/SR.3, at 9, para. 43; training and support for women's co-operatives, Simma, E/C.12/!989/SR.6, at IO, para. 45. 228 Quotas referred to have included: measures to ensure ethnic balance in schools, Badawi El Sheikh, E/C.121I989/SR.10, at 10, para. 59; a law reserving 2 per cent of jobs for the disabled, Jimenez Butragueno, E/C.121I989/SR.15, at 4, para. 15. 229 Capotorti emphasizes that while the questions of non-discrimination and minority protection are distinct in that the former requires uniform treatment and the latter special treatment, they are in fact 'two aspects of the same problem: that of fully ensuring the equal rights to all persons': supra, n. 19, at 14. See also McKean, supra, n. 24, at 142. The HRC points out, however, that art. 27 ICCPR (relating to the rights of persons belonging to minorities) may be distinguished from the general non-discrimination clause in art. 2( 1) in that the latter 'applies to all individuals within the territory': General Comment No. 23(50 ), UN Doc. CCPR/ C/21/Rev.1/Add.5, at 2, para. 4 (1994). 23° Cf. Muterahejuru, E/C.12/!992/SR.4, at 12, para. 54. 231 See also Thornberry, supra, n. 210, at 178-80; Cholewinski R., 'State Duty to Ethnic Minorities: Positive or Negative?' (1988) IO Hum. Rts. Q 344; Sohn L., 'The Rights of Minorities' in Henkin L. (ed.), The International Bill of Rights (1981), 270. 232 Konate, E/C.12/!992/SR.17, at 3, para. 9.

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larly as regards their cultural identity. Although article 15 merely states that everyone has the right to 'take part in cultural life', a recognition of legitimate differences in belief and tradition is to be found in article 13(3) and (4). Under that article, parents have the right to establish and choose schools other than those established by the public authorities. Similarly, the reference to self-determination in article I of the Covenant may be interpreted as implying that minorities have a right to pursue their own 'economic, social, and cultural development' without excessive interference from the authorities. 233 Although these provisions appear to stress freedom from State interference in the maintenance of an independent identity, the question remains of the extent to which the Covenant places positive obligations upon States to promote the cultural rights of minorities. Despite the obvious pitfalls in defining 'ethnic minorities',234 members of the Committee have endorsed the idea that they are entitled to have their independence respected. 235 It follows that ethnic groups and indigenous populations should have the right to express themselves in their own language, enjoy their own culture, 236 and establish their own educational institutions if they choose to do so. 237 In addition, members have generally been critical of attempts to assimilate such groups into the mainstream,238 233 As the Human Rights Committee stated with respect to art. 27 ICCPR: 'the rights protected by art. 27 include the rights of persons. in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong': UN Doc. A/45/40, Vol. II, App. A, para. 32.2 (1990). 234 See Sigler and Capotorti, supra, n. 19. It may be noted here that the institution of positive measures in favour of ethnic minorities can be assimilated only as a group right. This is not the case for other actions under art. 2(2). A distinction may be drawn between rights that fall upon the individual as a result of his or her membership of a group, and rights that belong to the individual who is to be identified by means of a group membership. Thus one member of the Committee commented with regard to a reply of the representative of Iran: 'The delegation's statement about the definition of minorities raised an interesting legal point but failed to address the real issue. Whether or not minority rights were treated as group rights was irrelevant to the existence of the rights of individual members of those groups': Alston E/C.12/ 1990/SR.43, at 8, para. 42. 235 e.g. Taya, E/C.12/r987fSR.r6, at 4, para. 14. 236 See e.g. Texier, E/C. 12/1988/SR.13, at 9, para. 39. 237 See e.g. Rattray, E/C.12/1990/SR.16, at ro, para. 54. Judge Tanaka commented in respect of minorities that the notion of equality before the law: 'prohibits a State to exclude members of a minority group from participating in rights, interests and opportunities which a majority population group can enjoy. On the other hand, a minority group shall be guaranteed the exercise of their own religious and education activities. This guarantee is conferred on members of a minority group, for the purpose of protection of their interests and not from the motive of discrimination itself. By reason of protection of the minority this protection cannot be imposed upon members of minority groups, and consequently they have the choice to accept it or not': supra, n. 7. 238 See Alston, E/C.12/1988/SR.13, at 13, para. 71; Simma, E/C.12/r993/SR.15, at 7, para. 29. Recognition of certain problems have been identified however. Thus Mr Wimer Zambrano commented: 'Recognition of indigenous languages, which reflected a concern to respect the traditions and the cultural identity of different indigenous populations, nevertheless ran counter to another objective of equal importance in countries of Latin America, the desire to achieve assimilation': E/C.12/1990/SR.18, at 14, para. 89.

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one member going so far as to make note of their right to selfdetermination.239 More significantly, however, and following the example of the HRC,240 the Committee has recognized the existence of certain positive obligations with respect to minorities. In its concluding observations on the report of Mexico, the Committee expressly referred to the need for resources to be made available for indigenous groups 'to enable them to preserve their language, culture, and traditional way of life'. 241 The significance of this obligation is not so much that the States have undertaken a resource commitment, but rather the implicit assumption that the disposal of those resources should be in the hands of the groups concerned. D Private Discrimination

In contrast to article 2( I)(d) of ICERD and article 2(b ), (e ), and (f) of Conv. EDA W which require the State to bring an end to racial discrimination by any persons, group, or organization, the Covenant makes no reference to discrimination between private individuals. Similarly, the travaux preparatoires make little specific mention of an obligation on the part of States to ensure non-discrimination between private individuals. 242 It is only possible to infer such an obligation from references to de facto equality. 243 That States undertake to 'guarantee' the exercise of the rights without discrimination does suggest that the obligation in article 2(2) extends beyond mere control of public bodies. Indeed, to the extent that States are required to control private activity in relation to the substantive articles (for example to ensure the right to work244 or safe and healthy working conditions), article 2(2) should also apply. One commentator concludes that 'under Articles 2(2) and 3 States are equally obliged to prohibit others to practise discrimination in public life'. 245 The Committee has expressed some interest in the need to protect the rights of individuals against possible violations by other individuals, 246 and has in particular looked towards control of the private sector. No distinction See Konate, E/C.r2/r989/SR.8, at IO, para. 52. The HRC comments with respect to art. 27 ICCPR: 'positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with the other members of the group': General Comment No. 23(50), supra, n. 229, at 3, para. 6.2. On the case law see generally McGoldrick D., 'Canadian Indians, Cultural Rights and the Human Rights Committee' (r99r) 40 ICLQ 658. 241 E/C.r2/r993/r6, at 3, para. rr. 242 Klerk, supra, n. r2, at 266. But see the discussion in the Third Committee relating to art. 26 ICCPR, A/C.3/SR.1098--99 (r96r). 243 See above, text accompanying nn. 16-20. 245 Klerk, supra, n. r2, at 267. 244 Cf Yilmaz Dogan v. The Netherlands, supra, n. r9r. 246 For the operation of the concept of Drittwirkung, see above, Ch. 3, text accompanying nn. 2 3-5. 239

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is drawn as regards article 2(2). Although there is certainly greater concern as regards the activity of public bodies,247 members of the Committee have thus looked towards the operation of non-discriminatory norms between private groups and individuals such as in private sector employment,248 education,249 and health care. 250 Only in a recent draft General Comment relating to persons with disabilities has the Committee given more concrete recognition to this question. 251 Even if it is accepted that the obligation in article 2(2) is not restricted to public bodies, some consideration needs to be given to the extent to which States are under a duty to regulate the actions of private individuals. There is clearly a tension here between individual freedom or privacy and the demands of combating discrimination. 252 As Henkin notes: That racial discrimination is often private discrimination means that efforts to eliminate it meet resistance from competing values of individual right which also have attractive claims in human dignity. 253

During the drafting of article 26 of the ICCPR it was made clear that individual preferences or the exercise of individual choice were not to be subject to legal regulation. 254 However matters of everyday life, such as housing, transport, restaurants, and employment, were deemed to be capable of control by the State.255 Ramcharan concludes rather generally that 'certain types of discrimination by individuals, other than in personal and social relationships, would violate the guarantees of the Covenant and that a state party is under an obligation to take measures against such forms of discrimination'. 256 The task is clearly one of defining the threshold between 247 e.g. many questions are directed exclusively at public employment, see e.g. Jimenez Butragueno, E/C.12/r991/SR.3, at II, para. 51. 248 Questions have been directed towards: differences of retirement ages in the private sector, Jimenez Butragueno, E/C.12/1988/SR.rn, at 8, para. 39; equal access of women to employment in the private sector, Simma, E/C.12/1989/SR.8, at 8, para. 46; and maternity leave for women in private sector, Mrachkov, E/C.12/r987/SR.8, at 7, para. 30. 249 See Rattray, E/C.12/1993/SR.13, at 11, para. 47. 250 See e.g. Rattray, E/C.12/1990/SR.2, at ID, para. 61. 251 The Committee comments that States 'need to ensure that not only the public sphere, but also the private sphere, is, within appropriate limits, subject to regulation to ensure the full participation and equality within society for all persons with disabilities ... it is essential that private employers, private suppliers of goods and services, and other non-public entities be subject to both non-discrimination and equality norms in relation to persons with disabilities': supra, n. 98, at 4, para. I I. 252 Meron interprets the right of association as restricting the scope of the principle of nondiscrimination 'so as to protect strictly personal relations from its reach': Meron, supra, n. 13, at 294. 253 Henkin L., 'National and International Perspectives on Racial Discrimination' (1971) 4 HRJ 263, at 265. 254 Saudi Arabia, UN Doc. A/C.3/SR.rn99, para. 18 (1961); Pakistan, UN Doc. A/C.3/ SR.1rn2, para. 4 (1961). 255 USSR, UN Doc. A/C.3/SR.rn98, para. 6 (1961). 256 Ramcharan, supra, n. 1, at 262-3.

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Non-Discrimination and Equality the exercise of individual choice and the control of discriminatory behaviour in public life. 257 Within the scope of the Covenant there are a number of areas in which the State might be obliged to ensure non-discrimination. For example, access to private employment or training, the rental of private accomodation, admission to trades unions or private educational establishments, access to privately owned cultural facilities (such as theatres or cinemas). While it might be said that there is a prima facie case for regulating the activities of all such institutions and individuals, it has to be recognized that there is also a need to protect the intimate and personal activities of individuals in their association with others. One solution is that, as Meron argues, the degree of intervention should be a function of the size and selectivity of the organization concerned. 258 In cases where discrimination is deeply engrained, however, a more far-reaching approach may be appropriate. The Committee has not, at this stage, made any attempt to rationalize the competing demands in this area. For example, in one case the Austrian representative noted that there was a problem of discrimination in the private sector as 'wages were freely agreed between employer and employee and because of the high value attached to the independence of the social partners'. 259 Although apparently negating any State responsibility for discrimination in the sphere of private sector employment, this statement was rather superficially accepted by the Committee without comment. It is submitted that the Committee needs to address these complex problems with more precision with a view to establishing some principle to describe State obligations as regards discrimination between private individuals and bodies. As a minimum, the Committee needs to ensure that States themselves are aware of the competing principles and have laws and regulations that reflect a balanced approach. VI. CONCLUSION

The concepts of equality and non-discrimination are arguably central to the implementation of the Covenant, and of great significance in the development of the Committee's supervisory functions. In broad terms, the essence of the Covenant may be seen to encompass an appeal to equality. This is apparent in the overtly 'welfarist' rights, such as the rights to social security, 257 There has been considerable criticism by feminists of the existing division between the public and private spheres. In this context see e.g. Okin S., 'Gender, the Public and the Private' in Held D., Political Theory Today (1991), 67. 258 Meron, supra, n. 13, at 295. 259 Berchold (Austria), E/C.12/I988/SR.4, at 3, para. II.

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health, housing, and education, which are clearly founded upon a redistributionalist philosophy. The principle of non-discrimination is of importance as, in a context in which basic norms relating to economic and social rights vary according to the economic resources of the State concerned, it is an unchanging and universally applicable standard, which is also evidently justiciable. Having said that, neither notion has been given the attention it deserves in the practice of the Committee. Given the complexity and controversial nature of the issues involved, there is manifestly a need for the Committee to make some clear statement as to its position. In particular, attention needs to be paid to the notion of equality of opportunity in so far as it is seen as being a relevant objective of the Covenant. This is so not merely by virtue of the fact that it in some guises it gives rise to claims for affirmative and protective action, but also because it poses significant problems of measurement or evaluation. In relation to the principle of non-discrimination, the Committee appears to have adopted a position analogous to that of other human rights bodies. It has interpreted article 2(2) in a relatively broad manner both as to its scope ratione materiae and ratione personae. Although the article is not deemed to be entirely autonomous in the sense of article 26 of the ICCPR, it covers both direct and indirect discrimination by public authorities and private individuals and may be seen to operate even where there is no evidence of a violation of one of the substantive articles itself. Similarly, the article is not limited to those 'suspect' classifications specifically enumerated, but may also cover other unreasonable differentiations. For example, the Committee has been clear in its opinion that discrimination on the grounds of age, health status, or disability is prohibited by the terms of the Covenant. Perhaps most importantly, the Committee views article 2(2) as imposing obligations to be implemented immediately. As such, it represents an important exception to the general terms of article 2( r) and is crucial to arguments in favour of instituting an optional protocol allowing for individual and collective complaints relating to rights in the Covenant. Even in the Committee's development of the notion of discrimination, however, there is room for greater specificity. Although it is clearly necessary for article 2(2) to apply beyond the restricted classification of grounds upon which discrimination is prohibited, the Committee needs to establish what additional grounds it considers to be 'suspect' and the level of scrutiny with which it will evaluate differentiations. Similarly, as regards regulation of the activities of private individuals a balance has to be struck between the demands of individual choice and freedom and the necessity of combating discrimination in the longer term. As suggested, the Committee should look initially to ensure that States reflect such a balance in their laws and administrative practices.

Part II Development of International Legal Standards

[6] Colonies, Minorities, and Womens Rights Johannes Morsink

We have seen (1.1) that the United Nations Charter contains seven human rights references. But the drafters of that Charter never speak of these rights as being inalienable or inherent in the human beings that have them. Instead they unpack the notion of human rights negatively and in terms of the principle of nondiscrimination. Thus the only way the UN Charter writers tell us what they mean by their recurring phrase "human rights and fundamental freedoms" is to prohibit discrimination among people on the basis of "race, sex, language, or religion." This short list of nondiscrimination items is the only explicit way the UN Charter gives content to the idea of human rights. Articles 2 and 7 of the Universal Declaration are an elaboration of this Charter principle of nondiscrimination. The long list in Article 2- "such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" -is an expansion of the much shorter Charter list "race, sex, language, or religion." 1 As Hernan Santa Cruz, the delegate from Chile, reminded his colleagues on the Third Committee, "article 2 [of the Declaration] aimed above all at giving expression to one of the basic provisions of the Charter. He recalled that the United Nations had been founded principally to combat discrimination in the world" ( Third, p. 129). Articles 2 and 7 of the Declaration use the prohibition of discrimination in slightly different ways, but because it was one and the same principle that was involved the drafting histories of these two articles are intimately intertwined. This chapter is devoted to Article 2 and its ramifications. I shall be referring to this strand of the principle as the international strand because it prohibits discrimination in terms of "all the rights and freedoms set forth in this Declaration." In other words, the Universal Declaration is being set up as a definite, identifiable, and external standard of judgment over whatever legal system happens to be in place at whatever place and time we pick. The intent of Article 2 clearly is to judge any systems that fall short of this standard. Humphrey devoted just one article to the matter of nondiscrimination. His Article 45 read: "No one shall suffer any discrimination whatsoever because of race, sex, language, or political creed. There shall be equality before the law in the enjoyment of the rights enunciated in this Bill of Rights" (AC.1/3). Articles 2 and 7 of the Universal Declaration have a common origin in this single article of Humphrey's. Cassin lifted out the phrase "equality before the law" and made it the basis of what was to become our Article 7. Humphrey had left out the item of "religion" (which was on the Charter list) and replaced it with "political creed." Cassin restored "religion" to the list and ex-

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changed "belief" for "opinion," thus expanding the list by one item. This gave Cassin the following principle: "Everyone is entitled to the rights and freedoms hereunder declared, without distinction as to race, sex, language, religion, or political belief" (AC.l/W.2/Rev.2). Upon the suggestion of the United States delegation the phrase "hereunder declared" was changed to the present "set forth in this Declaration" and this text was sent to the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities for advice on the final wording. This Sub-Commission recommended to the Working Group of the Second Session the following text: "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, sex, language, religion, political or other opinion, property status, or national or social origin." 2 The Working Group adopted this text by 3 votes for and 3 votes against. Article 2 ultimately expands this already expanded list.

3.1 The Communist Push for Nondiscrimination There is too much nondiscrimination language in the Charter of the UN to say that the Communists introduced this principle into the drafting process of the Declaration. But we can say that it is mostly due to their persistence that it is so prominent a feature of the document. More than any other voting bloc the Communists pushed from the very start for the inclusion of clear antidiscrimination language in the Declaration. This nondiscrimination stamp is their mark on the document. At the start of the First Session of the Drafting Committee delegates engaged in a general discussion of the principles they thought should guide the drafting process. Vladimir Koretsky, the Soviet delegate, made the point "that one of the first principles to be adopted in the formulation of an International Bill of Rights must be the destruction of discrimination and inequality" (SR.5/p. 5). He called upon the United Nations to eradicate discrimination, which he said "could be considered an international political act" that was a threat to "peace and security" (p. 7). In other words, he wanted it to be one of the tasks of the United Nations to rectify discriminatory practices that took place within the borders of sovereign states. Though Koretsky did not specify the way in which this correction was to be made, his remarks suggest that he looked upon the principle of nondiscrimination as a moral standard of judgment against which the performance of nations could legitimately be measured. One meeting later he complained "that the ideas regarding discrimination as expressed by the various drafts had not been developed sufficiently." He mentioned the treatment of Indians in South Africa and the unequal treatment of women in all areas of life as examples. 3 In the Second Session of the Commission the Soviet delegation took the same high moral ground. It wanted the Declaration to say that acts of discrimination "constitute a crime and shall be punishable under the law of the State" (SR.34/p. 10). Since the Declaration was to cover all systems of positive law, this demand is an implicit acknowledgment that nondiscrimination is a moral principle that transcends national boundaries. When Eduardo Cruz Coke, a delegate from Chile, questioned why Alexei Pavlov was willing to put so much "power in the hands of the State, [since] ... the State constituted the chief threat to the rights of the individual" (p. 10), Pavlov responded that "if no provision were adopted to prevent acts of dis-

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crimination, it would mean that such practices as lynching Negroes would continue." This was just after President Truman's committee on the status of civil rights for Americans made its findings public. Pavlov was a man who meticulously researched his speeches, and we can be sure that at this point he had already read or heard about the indictment contained in the report. When he established his committee Truman had said that "the actions of individuals who take the law into their own hands and inflict summary punishment and wreak personal vengeance is subversive of our democratic system of law enforcement." 4 Indeed, as had been expected, the report told the president that "lynching remains one of the most serious threats to the civil rights of Americans." 5 The debates in the Commission's Third Session on the meaning of the word "discrimination" confirm Pavlov's worry about what he saw as a lack of support for a crucially important principle. At that stage what was to become Article 7 contained the right of all to "equal protection of the law against arbitrary discrimination ... and against incitement to such discrimination" (102/p. 2). The Ukrainian delegation had proposed that the word "arbitrary" be deleted from the article. During a discussion of this proposal Pavlov repeated his earlier criticisms. As it stood, he said, "the Article talks only of 'arbitrary discrimination' and incitement thereto, whereas discrimination in general is not mentioned." He pointed out that the article condoned and justified "the so-called 'non-arbitrary' discrimination, i.e. discrimination based on the law." As examples he gave "the mass discrimination, most disgraceful and offensive to human dignity, which is embodied in the laws against Negroes in the United States of America or against Indians in the Union of South Africa." These laws showed how "wretched, incomplete, and consequently hypocritical and false is Article 3 [2 and 7] of the draft 'Declaration' in its present form" (SR.49/p. 9).6 Some of the delegates who felt pressured by the communist charges sought to defend the retention of the word "arbitrary" on the grounds that the word "discrimination" meant the same thing as the word "distinction" and that not all distinctions were invidious or harmful. Ignoring Pavlov's point about lawful discrimination, Roosevelt explained that not all discrimination was "necessarily invidious; thus protection for reasons of old age would be of a useful and commendable type" (SR.52/p. 9). Both the Chinese and the French delegates thought that the word discrimination did mean the making of "invidious distinctions" and therefore favored the deletion of the word "arbitrary." Pavlov concurred, noting that the word "discrimination alone had a derogatory connotation. Discrimination which harmed men was quite different," he said, "from any distinction established to assist certain groups which require special aid" (p. 9). The Ukrainian proposal to delete the word "arbitrary" was adopted by 9 votes to 6, with 1 abstention (p. 13). After the word "arbitrary" had been deleted what was left stated that "all are entitled to equal protection of the law without any discrimination, and against any discrimination ... or incitement to such discrimination" (SR.53/p. 5). Noting the multiple occurrence of the word "discrimination" "with two different shades of meaning," A. J. D. Hood of Australia proposed to replace the first use of it with the word "distinction" (p. 10). When he saw the opposition this elicited he withdrew his suggestion, which he had "put forward only in the interest of clarity." 7 Roosevelt was clearly in favor of the change, which is why she ruled the proposal to be merely a stylistic one.

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Michael Klekovkin, the delegate from the Ukrainian Soviet Socialist Republic, "could not agree ... that style only was involved. The (withdrawn) Australian substitution of 'distinction' for 'discrimination' was an alteration of substance, he argued. Furthermore, the word 'discrimination' had already been adopted at the previous meeting, and must [therefore] be retained," he said (p. 9). Even though Hood had withdrawn his proposal-which meant the word "discrimination" remained throughout the article-Roosevelt nevertheless asked a drafting group that had been working on the article "to take into account the fact that the word 'distinction' was used throughout the Charter, and that the use of the word 'discrimination' would constitute an important change" (p. 10). The group returned the article with the word "discrimination" retained (SR.54/p. 2). In the Third Committee the Cuban delegation proposed to merge what became Articles 2 and 7 into a single article prohibiting discrimination. Pavlov again came to the defense of a very explicit and double presence in the Declaration of the principle of nondiscrimination, which in his eyes could and should be used to judge the domestic policies of all nations. This time he added some of the British colonies to the list of areas where gross discrimination was being practiced. He argued that a merger of the two strands into one article would "weaken the principle set forth in article 2." He pointed out that while in "certain countries the question of discrimination was perhaps not of extreme importance," in many cases it still did exist and he went on to give as examples the treatment of black people in the United States, of Indians in South Africa, and of the peoples in the British colonies of the Gold Coast, Nigeria, and Rhodesia (p. 131). Pavlov also chastised the United Kingdom and the United States for not doing more to implement the equal rights of women in the political arena. "Thus of the 640 members of the British Parliament only 24 were women and only nine women were members of the United States Congress. The Supreme Council of the USSR included 227 women, a much higher proportion than that found in any other parliament in the world. Those figures," he summed up, "were all the more remarkable, since in thirty countries of Europe and America women had no vote" (p. 131). The Cuban amendment ran into heavy opposition and was never voted upon. Santa Cruz objected to these pointed attacks with the observation that Pavlov himself had objected to "remarks on the state of affairs prevailing in the Soviet Union ... in the debate on freedom of movement" (p. 131). Durward Sandifer, a United States representative to the Third Committee, also "expressed his surprise that the USSR, which fought against discrimination in all its forms, should seek to restrict the benefits of article 12 [on asylum] to certain groups of people" (p. 334). These inconsistencies do not remove the fact that it was primarily Communist insistence that stamped the Declaration in a clear way with the prohibition of discrimination. With strong assists from the Indian delegation, the USSR delegation was a crucial player in the expansion of nondiscrimination items in Article 2. The Communist delegations were also great allies of the women's lobby and helped that lobby clear the text of sexist language and insure equal rights for women across the entire range of the Declaration. It was Communist persistence that got the right to be protected against incitement to discrimination to be attached to Article 7 (see 2.4). If Stalin and Tito had not

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split, the Declaration might have had in it an article applying the rights of the Declaration specifically to members of linguistic, religious, or racial minority groups ( see 7.4). The absence of such an article can now be seen as one of the major weaknesses of the Declaration. The Communists knew this was the case and fought (inefficiently) to have such an article included. Finally, the Communist insistence on nondiscrimination had a great deal to do with making the Declaration a secular document (see 8.1). This means that people from all sorts of religious persuasions, as well as agnostics and atheists can accept and embrace the Universal Declaration from what Tore Lindholm has called their own "normative heartland." 8 As another example of the Communist nondiscrimination stamp I mention the heated debates about the second paragraph of Article 2 which states: "Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty." In other words, it does not make any difference where and under what kind of political or legal system a person lives. He or she is "entitled to all the rights and freedoms set forth in this Declaration," no matter what. The Communists were the first to place the issues raised in this paragraph on the drafting table and to keep them there until the people of the colonies were covered by the Declaration.

3.2 The Problem of the Colonies In 1914 Lenin calculated that "more than half of the world's population lived in colonies, which together covered 3/4 of the world's territory," a calculation that was still roughly correct at the end of the 1940s.9 This fits the estimate Philippe De La Chapelle made of the United Nations membership at the time the Declaration was adopted: "North and South America with 21 countries represented 36% of the total, Europe with 16 countries 27%, Asia with 14 countries 24%, Africa with 4 countries a mere 6%, and the South Sea Islands with three countries 5%." 10 This shows that the continents of Africa and Asia were grossly under-represented. And that is where in the 1940s some of the most prominent drafting nations still had their colonial empires. The Declaration was written at a time when these empires just started to break up. Two of the most influential drafters, Malik from Lebanon and Romulo from the Philippines, were from countries that gained their independence in 1946, the year the Nuclear Committee met. Syria also joined that year. In 1947 India, Burma, Pakistan, and in 1948 Ceylon gained their independence. Both India and Pakistan played an active role in the drafting process. The People's Republic of China was not established until 1949, meaning that the great talents of P. C. Chang, which helped shape the Declaration, were used on behalf of Chiang Kai-shek's fading government rather than to express the wishes of the new Communist regime. That same year Indonesia gained its independence from the Netherlands. Other Asian nations, such as Laos, Cambodia, and Vietnam, did not gain their independence from France until 1954. None of these Asian countries were therefore directly represented in the drafting process. As for Africa, only four nations from that continent took part in the process.11 Harry Magdoff reports that in the five years from 1958 to 1962 "twenty-three new independent nations were established in tropical Africa; and from 1963 to 1968 an additional ten

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independent nations came into being there." 12 At the Declaration's Fiftieth Anniversary, the United Nations has three times the membership it had when the Declaration was adopted. This tripling of the UN membership has legitimately fed the suspicion that the process by which the Declaration came into being was badly flawed. According to some scholars the ,damage done back then is so great that the document has no real legitimacy outside of the West. Adamantia Pollis and Peter Schwab believe, for instance, that "to argue that human rights has a standing which is universal in character is to contradict [the] historical reality," which is that the 1945 San Francisco Conference at which the United Nations was created "was dominated by the West, and that the Universal Declaration was adopted at a time [1946-1948] when most Third World countries were still under colonial rule." 13 These two scholars have voiced a very common concern about the Declaration and many critics share their conclusion that in spite of its title the Universal Declaration can only have "limited applicability" and that attempts to enforce it globally "are bound to fail." 14 The Communist drafters brought this problem of the colonies to the attention of their colleagues, a fight ensued, and as a result the colonial peoples were put into and are now "covered by" the Declaration in more than one place, although not in as clear a manner as their defenders wished. Geography merges with ideology once we realize that many of the new member states from Africa and Asia have a more communitarian political philosophy than that generally held by those nations around the North Atlantic which dominated the drafting process of the Declaration (see Chapter 7). Though the deliberations about the Declaration began in the spring of 1946, the problem of the colonies did not arise until a year and a half later in the winter of 1947. One would not expect the colonial powers themselves to raise the matter, and they did not. The early drafts contained no reference at all to the colonies. The shift came with a new emphasis in Soviet policy. Until the fall of 1947 the Soviet Union had been preoccupied with problems in post-war Europe, but it began to cast a wider glance at a meeting in Poland at which the Cominform - the Communist Information Bureau-was established. Andrei Zhadanov, Stalin's heir apparent, delivered the key speech and said that the world was divided into two camps, "the 'imperialist and antidemocratic camp,' led by the United States, and the 'democratic and anti-imperialist camp,' led by the Soviet Union." He went on to assert that there was a "crisis of the colonial system" and that "the peoples of the colonies no longer wish to live in the old way. The ruling classes of the metropolitan countries can no longer govern the colonies on the old lines." 15 The impact of Zhdanov's widely circulated and translated speech was immediately felt in the deliberations of the Second Session of the Human Rights Commission, which met that December. In one of the working groups of that session the British and the Soviet delegates clashed more than once over the implications of the Declaration for the peoples living in the colonies. The USSR and the BSSR delegations quoted the United Nations Charter on the responsibility it says metropolitan powers have over the non-self-governing territories under their jurisdiction.16 On that basis they pushed for the holding of elections in the non-self-governing territories and in the colonies (SR.7). R. P. Heppel, the British observer in the Working Group, pointed out that some "of the western democratic procedures" were not recognized by "some of the British African depen-

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dencies ... their forms of native government [being] based on old-established customs with which it was the policy of his Government to interfere as little as possible" (p. 8). The Working Group did not replace the word "everyone" in Article 2l's statement that "everyone" has a right to take part in the government of his country with the word "citizen" precisely to draw in those peoples living in the colonies.17 The matter came to full-blown debate in the Third Session of the Commission in May and June of 1948. The operative paragraph of the Declaration recommends that it be observed "both among the peoples of the Member States themselves and among the peoples of territories under their jurisdiction." "Territories under their jurisdiction" is an oblique reference to the colonies administered by the metropolitan powers and was added upon the recommendation of the Egyptian delegate, Loufti. A subcommittee on the Preamble had deviated from the United Nations Charter in that it had submitted a version that made no reference to trust and non-self-governing territories. The Soviet Union sought to remedy this serious omission with a rather cumbersome amendment.18 The Egyptian representative warned his colleagues because he "considered the idea embodied in the USSR proposal to be extremely important. It was essential," he said, "that the Declaration should state that it was for nations and peoples that were not autonomous or were under Trusteeship" (SR.78/p. 6). Ignoring the precedent of the Charter, Geoffrey Wilson, the U.K. representative, objected to the Soviet version because he was opposed "to the apparent discrimination made in the USSR text by especially mentioning the trust and non-self-governing territories" (SR.77/p. 12). His French colleague, Ordonneau, spelled out what Wilson had only suggested, namely, that there was no need to single out the colonies because he rejected the Soviet suggestion that "the populations of these territories did not enjoy the essential rights and freedoms on an equal footing with the population of the metropolitan territories" (p. 13). Nevertheless to meet the Soviet point, the much shorter and therefore less threatening Egyptian phrase ("and among the peoples of territories under their jurisdiction") was adopted. In the next meeting a Chinese proposal to insert the words "for all peoples" before "for all nations" in the same operative paragraph was also adopted to pull in the colonies without mentioning them explicitly. An even bigger clash occurred in the fall in the debates of the Third Committee. The Yugoslav delegation proposed to add to the Declaration a separate article which stated that "the rights proclaimed in this Declaration also apply to any person belonging to the population of Trust and Non-Self-Governing Territories" (307/Rev.l/Add.1). Since the phrase "Non-Self-Governing Territories" was a euphemism for the colonies, this article went a long way to meeting the Charter's demand that human rights also apply to the peoples in the colonies. With a vote of 16 to 14 and 7 abstentions, this Yugoslav article was adopted (p. 746). Its inclusion represented a definite strengthening of the universality of the document. The groups that voted against or abstained from voting on the Yugoslavian proposal consisted of the colonial powers who were joined by nations from Latin America. 19 As rationale they claimed that the article on discrimination sufficiently covered the issue and that it was unwise to mention special cases for fear that other possible exceptions that were not singled out would avoid judgment. The clearest statement on behalf of the colonial peoples came from A. M. New-

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lands, the New Zealand delegate. She felt that "all delegations would probably agree in principle that the human conscience has progressed so far as to find oppression of colonial peoples intolerable." To those who said that the general statement against discrimination was enough she answered that the general principle had been repeatedly declared, "but it had not always been applied in colonial territories." She did not think that a vague line or two in the Preamble or operative part was good enough. To avoid all possible misunderstanding a separate article was needed since "the rights of the colonial peoples should receive the same consideration as those of others, if the Declaration was to avoid the appearance of making discriminations." Delegations which had opposed this article "had little idea of the feeling of exasperation and despair generated in peoples living under colonial regimes." 20 After adoption the new Yugoslav article (with the rest of the draft Declaration) was given to a subcommittee on style and arrangement to be put in its proper place. If the colonial powers had had no hidden agenda and really only believed that Article 2's first paragraph was enough, then there would have been no need for them to exceed their mandate. But that is what they were caught doing. The Cuban delegation had proposed that the following be added as a second paragraph to Article 2: "Neither shall there be any discrimination against anyone because he is an inhabitant of a non-self-governing territory, trust territory or metropolitan power (administrative authority)" (A/C.3/SC.4/3). A note was attached saying that "this text is to replace the additional article" on the colonies that had been adopted. This proposal was passed on to the subcommittee on arrangement and style, which had on it delegates from Australia, Belgium, China, Cuba, Ecuador, France, Lebanon, Poland, the Union of Soviet Socialist Republics, the United Kingdom, and the United States of America. This subcommittee had been charged to examine the draft Declaration "solely from the standpoint of arrangement, consistency, uniformity and style" (A/C.3/400/ Rev.I). It nevertheless accepted the Cuban proposal in a revised form and proposed that a second paragraph be added to Article 2: "Furthermore, no distinction shall be made on the basis of the political status of the country to which a person belongs" (400/Rev.1/Annex A). The phrase "Trust and Non-Self-Governing Territory" had been dropped and replaced with the phrase "political status of the country" and the colonies were demoted from having their own separate article to becoming hidden in the second part of an other article. In their report the members of the subcommittee admitted that three of them (Ecuador, Poland, and the USSR) had o~jected to the acceptance of the (revised) Cuban proposal on the grounds that "the Sub-Committee had exceeded its terms of reference in changing the additional article adopted by the Third Committee" (400/Rev.l/art.2,par.2). In the Third Committee's discussion of the subcommittee's action, Guy Perez Cisneros, the Cuban delegate, repeated his argument that the idea at issue should be expressed "in such a way as to ensure universal application. It was not only a question of Trust and Non-Self-Governing Territories. There were other countries, namely, countries under foreign occupation, which none had yet thought of defending" (p. 856). He did have a point, but the main issue of adhering to the Charter's mandate and applying human rights in a clear and straightforward manner to the colonies was being subverted. Demchencko, the representative from the UKSSR, said that he was not surprised,

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for the changes that had been made "were only one more manifestation of the attitude which certain colonial countries had maintained ... giving seemingly innocent drafting considerations as a pretext, certain delegations had wished at all costs to prevent the declaration from including explicit mention of the populations of NonSelf-Governing or Trust Territories" (p. 860). Carrera Andrade, the Ecuadoran representative, reminded his colleagues that the "explicit purpose" for the adoption of the separate article was "to extend the protection of the declaration of human rights to the inhabitants of the colonies" (p. 858). The subcommittee's recommendations subverted that purpose. Fryderika Kalinowska, the Polish delegate, was of the opinion that the demotion of the separate article on the colonies "sprang from the same attitude of mind which was in favor of the colonial system" (p. 854). This is strong language, but it is not without merit. Benigno Aquino of the Philippines also thought it "indisputable that the Sub-Committee had gone beyond its terms ofreference" (p. 861). Most of the metropolitan powers followed the Cuban line, arguing that the more vague and general Cuban terminology was more inclusive and therefore more in keeping with the requirement of universality. Several defenders of the Cuban proposal themselves had trusteeship agreements with the United Nations and they liked the more general language better because it did not single them out as possibly not doing a good job.21 Since the agreements they had signed with the United Nations did have several human rights stipulations in them, which Humphrey's staff had distributed to the Commission of Human Rights, they felt that these territories did not need to be singled out (W.13). Defenders of the separate article, on the other hand, felt that they were simply continuing a United Nations policy of spelling out the human rights requirements for trust and non-self-governing territories, a precedent set by the Charter itself when it demanded in Article 76(c) that any nation that signed a trusteeship agreement "encourage respect for human rights and for fundamental freedoms for all." Cassin pointed out to his colleagues that the Cuban proposal had met with the approval of the majority of the subcommittee members and had passed with a vote of 6 to 3, and he "protested against the tendency to question the good faith of the members who constituted that majority" (p. 857). The Belgian representative, Count Carton de Wiart, saw the advantage of the more general terminology in that it also covered "territories with a special juridical status . . . namely Tangier and Trieste currently and Jerusalem in the future." The crucial issue for him was "the universal application of the Declaration of Human Rights" and he wanted to avoid "the danger of excluding a single human being from enjoying the rights and freedoms to be established in that declaration" (p. 859). The chairman, Malik of Lebanon, agreed that the subcommittee "had gone beyond its terms of reference" and so ruled. When the Cuban delegation appealed that ruling of the chair it was rebuffed in a vote of 29 to 7, with 9 abstentions (p. 862). This meant that the application of the rights in the Declaration to the peoples in the trust and non-self-governing territories once again had its own separate article. It would now take a two-thirds majority to get the matter reconsidered. The British delegation sought to do just that and its delegate, F. Corbet, "moved formally that the Committee should re-examine the additional article." This motion was defeated in a vote of 25 to 14, with 6 abstentions (p. 863). This is one vote short of the required two-thirds

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majority and set the stage of yet an other attempt in the General Assembly debates that followed. There, in an unusual move, the British delegation proposed to delete the separate article on trust and non-self-governing territories and make it the second paragraph of the article on nondiscrimination. 22 This new paragraph was adopted (and the separate article dropped) with a vote of 29 to 17, and 10 abstentions (p. 932). The symbolism of that proposal and vote was a powerful one, for in law, as in poetry, separate lines are crucial. Davies, the U.K. representative, argued that "if the colonial territories were singled out, so should the countries behind the iron curtain" (p. 848). If the article on nondiscrimination meant exactly what it said, then, he said, "there was no reason to add an article three stipulating that those rights applied to the inhabitants of the Trust and Non-Self-Governing Territories" (p. 883). Ljuba Radevanovic, the representative from Yugoslavia, retorted that the provision of Article 3 was a step forward because it clearly stated "the equality between the colonial populations and those of other territories" and thus "contained the great principle of justice towards the unhappy colonial peoples who had always been denied that right" (p. 917). Katz-Suchy, the Polish delegate, felt that "the British colonies were a gigantic enterprise for the exploitation of cheap labor." 23 To which Dimitri Z. Manuilsky, the delegate from the UKSSR, added the observation that "only seven out of every thousand children of school age attended school" in Nigeria, which had been under British rule for over a century (p. 870). Manuilsky argued that "the absurd theory current among colonial powers that there were superior races and inferior races must be eradicated." To see that theory in practice, one did not have to look, he said, at Nazi Germany or at South Africa, for one could also find "the same [racist] situation, for instance, in Indonesia" (p. 872). That comment did not help get the Dutch vote, for at that time Indonesia was still under Dutch rule. The United States was not a colonial power, but that is the company Manuilsky placed it in when he told the Assembly that in the United States "many children ... did not attend school or received inadequate schooling [and that the] situation was obviously worse in the colonial territories" (p. 870). The British proposal to demote the colonies was accepted with 29 votes for, 17 against, and 10 abstaining. 24 No roll call was taken. If only six delegations had voted the other way the colonies would not have been demoted, which might have happened had some delegations not felt personally attacked. For instance, New Zealand had voted for the separate article in the earlier vote in the Third Committee, but it supported the British move in the General Assembly. The Lebanese delegation also sat on the fence. It is also quite likely that all the Communists except for Yugoslavia abstained from voting on the U.K. proposal. The separate article in the text had originated with the delegation from Yugoslavia. 25 By this time Tito and Stalin had publicly split, so the other Communist delegations did not support the Yugoslav initiative and instead presented their own amendments for consideration (A/784/p. 854). Vyshinsky, the delegate from the USSR, attacked the Yugoslav article as "still less satisfactory" than the highly defective article on nondiscrimination, because it contained no reference to the right of nations to self-determination (p. 926). By not supporting their Yugoslav comrades, the other Communists in effect undercut their own plan of making the colonies more visible and helped the British demotion succeed.

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3.3 Race, Color, National Origin, and Language Race and Color That the Universal Declaration should bar discrimination on the basis of race and color was a foregone conclusion. Race is first on the short Charter list of nondiscrimination items. And we saw in the preceding chapter that most of the Declaration was drafted in direct response to the horrible excesses of Hitler's racist policies. The first thing the Allied powers did after the war was to dismantle Hitler's racist legal structures. The fourth political principle announced at the 1945 Potsdam Conference stated that "all Nazi laws which provided the basis of the Hitler regime or established discrimination grounded on race, creed or political opinion shall be abolished." 26 The peace treaties with Axis powers also included provisions for the repeal of all racist legislation and discriminatory practices (Sub.2/3/p. 9). It is therefore inconceivable for the Universal Declaration not to have prohibited discrimination on the basis of "race" and "colour," the first two items on the list in Article 2. When the article on nondiscrimination came back from the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities its list did not include "colour." Instead, the Sub-Commission's report contained a note saying that "the Sub-Commission ... thought there was no need for a special mention of 'colour,' as that was embodied in the word 'race'" (52/p. 4). Between that note and the inclusion of the term in the final product lies the following story. In one of the very first sessions of the Sub-Commission Minocheher Masani, an Indian expert, formally proposed that the word "colour" be added to the list of items on the basis of which discrimination was to be prohibited. His reasoning was "that race and colour were two conceptions that did not necessarily cover one another." One indication of this was that organizations such as the American Federation of Labor "had sought fit ... to refer explicitly to colour as well as race in connection with discrimination" (Sub.2/SR.4/p. 2). Two related objections were raised to Masani's proposal. The first one was that the Declaration's list of nondiscrimination items should not be different from the four items of race, sex, language, and religion in the UN Charter. Herard Roy, a Haitian expert, was the strongest proponent of this view. He noted that at "none of the conferences of the ILO, WHO, and UNESCO, at the Pan American Conference or in the Charter of the United Nations had any words other than race, sex, language, or religion ever been used. To add the term 'colour' now, would be to assume that colour was not implied in any of the international documents that mentioned race." And that might mean that "the whole Charter would have to be revised" (pp. 4-5). Jonathan Daniels, a U.S. expert and Joseph Nisot, a Belgian expert, were of much the same opinion. The second objection was a related but broader one. It was based on the fact that there existed no scientific definition of race and that the word "race" in the Charter could therefore only have a more general sense, which usually included colour. This was the position Samuel Spanien, a French expert, took when he said that since "there was no scientific definition of the word race ... it [was] desirable for the word 'color' to be added" (p. 3). Similarly, Rezazada Shafaq, an expert from Iran, "pointed out that since there was no precise scientific definition of 'race' the word had to be used in a

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general sense, which included the idea of colour" (p. 3). Considerations like these led McNamara, an Australian expert, to urge that "if there was the slightest doubt it was better to add the word 'color' than to risk leaving out certain groups" (p. 3). Having heard the evidence on either side, Dr. C. H. Wu, a Chinese expert, who first had spoken against the insertion, changed his mind. He now thought it "preferable for the Sub-Commission to define the term more precisely by adding the word 'colour'; and the authors of the Charter could not be blamed for that" (p. 4). If a vote had been taken, the term "colour" probably would have made it onto the list at this time. However, E. E. Ekstrand, the chairman and Swedish expert on the Sub-Commission, "proposed that since opinions in the Sub-Commission were divided regarding the insertion of this term, a note reading as follows ["It being understood that the term 'race' includes the idea of 'colour'"] should be added to the text" (p. 5). This was done. In the Second Session of the Human Rights Commission also it was the representative of India who first broached the subject of going beyond the UN Charter. Hansa Metha observed that in the covenant version of this article the word "colour" followed the word "race" and she wondered whether the same thing should be done in the Declaration's list of items. She said that she herself "understood the term 'race' to include colour, but if there was any doubt on the subject, she thought that the word 'colour' should be inserted in the Declaration" (SR.34/p. 10). Malik, the representative of Lebanon, noted that "the representative of India had raised an important point since 'race' and 'color' did not mean the same thing, neither was the conception of colour included in the term 'race'" (p. 10). General Romulo, the representative of the Philippines, "supported the Indian proposal that the word 'colour' be added to the Article in the Declaration" (p. 10). The Indian amendment to add the word "colour" after the word "race" was adopted by 10 votes to none, with 6 abstentions (p. 11). I expect that readers will agree with those of the above mentioned delegates who claimed that there was no scientific definition of race. Race involves the classifying of peoples on the basis of inherited characteristics, of which skin colour is only one.27 Colour is simply the most obvious and most frequently used one on a long list of physiological characteristics that governments and individuals often use to draw insidious distinctions between people. This lack of a factual basis for any definition of race makes for a close affinity between the items of race and colour and the items of "language" and "national origin" which are also on Article 2's list. Together "race," "colour," "language," and "national origin" build a strong protective wall around membership in ethnic, cultural, and linguistic minority groups.

National Origin The item "national origin" was first proposed by Borisov, the Soviet expert, on the Sub-Commission. Just as it had in the case of race-saying it included color-the Sub-Commission attached a note to the item of "national or social origin," which said that "the Sub-Commission wished to make it clear that the words 'national origin' should be interpreted by taking this conception, not in the sense of citizen of a State, but in the sense of national characteristics" (Sub.2/SR.21/p. 5). This reading of "national origin" links it to "race" and "color" and strengthens the protection of the

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rights of members of ethnic and cultural groups. It is significant for our interpretation of Article 2 to note that the Commission on Human Rights accepted this gloss, making it an authoritative interpretation. When Borisov presented his expanded list, Nisot, the Belgian expert, asked him what he meant by the phrase "national origin." 28 William McNamara, the Australian expert, volunteered that "it was synonymous with nationality, but that it might also have a wider meaning" (p. 6). Monroe, the British expert, did not think the two were synonymous, while Spanien, the French expert, "suggested omitting the words 'national or social' ... [which] would leave the word 'origin' to cover everything" (p. 7). Borisov did not think the word "origin" alone would do since the Soviet Union had, for instance, "various nationalities of the same origin" (p. 7). Shafaq, the Iranian expert, proposed to delete the word "national" from the Borisov list. Spanien and Monroe offered a joint amendment dropping both the adjectives "national" and "social" and replacing them with the nouns "origin or class" (p. 8). Monroe explained that the word "class" had been proposed as a clearer version of "or social origin" and that the word "national" had been omitted "because 'national origin' " was liable to be confused with "nationality," which was true. Borisov did not mind seeing his word "social" replaced by "class," but he did object to the omission of the word "national." He thought it was "in the interests of countries where people of different national origins lived together under the same government that the words 'national origin' should be specifically mentioned" (p. 9). While Daniels, the U.S. expert, wanted to stay with the shorter Charter list, McNamara agreed with Borisov's view that "the omission of the phrase 'national' made the phrase meaningless." He felt "that the idea of 'nationality' which had been the cause of a great deal of discrimination in the past, should be included" on the list of items. This view was seconded by Wu, the Chinese expert, on the grounds that "in some countries there existed national groups that needed to be protected against discrimination. If the word 'national origin' referred to such groups he thought that they should be retained." 29 Borisov agreed with this. He had no wish for aliens to be given the right to vote in a foreign country, but he thought that the rights of national groups, living as citizens in a country, should be protected (p. 10). Shafaq liked the term "ethnic" better than "national" but would go along with the Borisov list (SR.6/p. 3). Whatever the difficulties the other experts envisioned, Borisov did not want to change "national" to "ethnic." The reason he gave was unclear. He said that "within that same nationality there could be different origins. Article 6 defined equal rights for all. This meant that any citizen of the Soviet Union were he Jew, Negro, Georgian, Caucasian, etc. could become a member or the President of the Supreme Council. The social ranks to be found within each country should not stand in the way of equality or rights. He asked 'Can a Negro become president of the USA?'" (p. 6). Both Shafaq, who had wanted to delete the word "national" and leave "property status, or social origin" in place, and Masani, the expert from India, felt that the examples quoted by Borisov "did not seem relevant" (p. 6). After overcoming several procedural problems, the Sub-Commission adopted the phrase "property status, national or social origin" with 6 votes and 5 abstentions (p. 14). It then attached the note saying that "the words 'national origin' should be interpreted by taking this conception, not in the sense of citizen of a State, but in the sense of national characteristics" (SR.17/p. 6).

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This authoritative gloss shows that in Article 27's right of everyone "freely to participate in the cultural life of the community" (see 6.3), the definite article just before the word "community" must be taken in a benign way. Since most of the expansion of the short Charter list occurred in the Sub-Commission that was explicitly charged with the protection of minorities we can be certain that the items being discussed in this section were indeed meant to protect members of these groups. (And, as that same Sub-Commission was also charged with preventing discrimination in general, these same items also serve that broader purpose.) This minority rights interpretation is strengthened by the fact that "language," which is intimately connected to the right to culture, is also an item on the list of Article 2.

Language In Chapter 7 (7.3) I discuss the question of language rights in connection with the right to an education and point out that Article 26's third paragraph gives to all parents, including those who are members of minority cultural groups, the "prior right to choose the kind of education that shall be given to their children." We can, with a slight reach, read this paragraph as giving to members of linguistic minority groups the right to help choose the language of instruction in these minority oriented schools. A Danish amendment to the education article presented to the Third Committee sought to make this right explicit. It stated that members of various minority groups had the right to "establish their own schools and receive teaching in the language of their own choice" (A/C.3/250). Cassin observed that the French delegation "was ready to support the Danish amendment ... but considered article 2 of the Declaration a secure basis for ensuring the rights of minorities. If there was any doubt concerning the rights of minorities to education and justice, it would be preferable to include the necessary additions and definitions in article 2 rather than to introduce reservations and expectations into other articles where they would be out place" (p. 587). This is an authoritative example of how any item on the list of Article 2 can be used to interpret the meaning and scope of the other articles in the Declaration. Besides education, the other two important areas where members of linguistic minority groups have a great interest in seeing their language rights protected are religion and courts of law. Article 18 of the Declaration most certainly gives members of minority religious groups all the rights members of majority religious groups have, including the right to conduct all or any religious activities in their native tongue (see 7.3). The remainder of this section is devoted to the drafters's view and votes on the right to use a minority language in courts of law. The right of linguistic minorities to use their native tongue in the courts did not become an issue until Stepanenko, the Byelorussian representative, made a point of it in the Working Group of the Second Session of the Commission. At the time the relevant provision stated that "no one shall be convicted ... except ... after a fair and public trial at which he has had an opportunity for a full hearing and has been given all the guarantees for his defense." Stepanenko observed that this article ought to also include "provisions concerning the right of the accused to use his own language in court."AC.2/SR.3/p. 10). Cassin, whose revision was being discussed, responded that "this right was provided for in the article 36," which was the Lauterpacht/Humphrey

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article on minority rights.30 He also made the point that a provision like this might better be worked out in the Covenant on which the Commission was also working. Bogomolov, the USSR delegate, took exception to that idea since, if the convention did not materialize, the Declaration would be left impoverished (p. 11). Romulo of the Philippines supported the Communist initiative and proposed the phrase "in a fair and public trial and in a language he understands" (p. 11). This was a subtle change for the worse because members of minority groups want the use of "their own language" in court and not just the use of a language they understand, though for reasons of justice they do want that too. This is one of the differences between immigrant groups and groups with a long historic minority status. When Cassin again revised the article he had a choice between the Byelorussian phrase "in his own language" and the Romulo phrase "in a language he understands." He made the provision say that the defendant "shall be entitled to aid and counsel, and when he appears personally, to understand the procedure and to use a language which he can speak" (SR.4/p. 6). There is a shift here from understanding a language to being able to speak it. Cassin chose this formulation as a middle ground between no language rights in the courtroom at all and the right to use one's native tongue. While speaking includes understanding, the reverse is not true. Still, this stops short of the right to use one's native tongue in courts of law, which was what the Communists were seeking to establish. Over some objections by delegates who had not been part of the Working Group, the Second Session approved the work of the Group and sent it on to the Second Session of the Drafting Committee. 31 When what is now Article 11 came up for discussion in that Second Drafting Session, Pavlov proposed that the following paragraph be added to the Geneva text: "When any person who does not know the national language is prosecuted, he shall be assured full knowledge of all the material in the case through an interpreter and shall also have the right to address the court in his native language." 32 He had failed to get this same paragraph included in the relevant article of the covenant (E/600). This time he had more success, for the Committee adopted his paragraph by 3 votes for, 1 against, and 2 abstentions (SR.40/p. 19). Unfortunately, the paragraph was not included in the draft declaration that was formally passed on to the Third Session of the Commission. Geoffrey Wilson, the U.K. delegate, forced the delegates to face up to the fact that they should choose between the hybrid article they were constructing, which included the just adopted USSR-sponsored paragraph, and the much simpler Geneva text. By 2 votes for, 3 against, and 3 abstentions they rejected the hybrid text and passed it on as an alternative to what had come to be called the "Geneva text" of the Second Session. Pavlov tried again in the Third Session. There the basis for the discussion was the Geneva text which said that any defendant shall be entitled to a fair hearing of his case and "if he appears in person to have the procedure explained to him in a manner which he can understand and to use a language which he can speak" (95/p. 5). The U.K.-India proposal left out even these watered-down (from the Soviet point of view) language rights, as did the Chinese proposal. The French proposed a text which gave the defendant the right "to have the procedure explained to him and to state his own case in a language which he knows." 33 Afanasi Stepanenko found the U.K.-India proposal unsatisfactory because it did not give the defendant qualified help and did not

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mention "the right to trial in one's native language." He argued that this particular omission amounted to "discrimination and [that) many countries practiced such discrimination against members of minority groups" (SR.54/p. 8). Pavlov also objected to all these proposals, saying that a member of a minority group should have the right to defend himself "in his native language" (p. 9). One of the issues involved hinged on whether the delegates thought that equality before the law, about which the Declaration was very explicit, was the same thing as equality before the tribunal and in the courtroom, about which it was much less explicit. The U.K., Chinese and Indian representatives thought these concepts covered the same terrain. But Pavlov was of the opinion that "equality before the law and equality before the courts were not synonymous. He [said) he could quote many examples to show that colored and white people were in theory equal before the law but that such was certainly not the practice of the courts" (p. 9). A few moments later he added the observation that "in colonial history the principle of equality before the law had not always implied equality before the tribunals" (p. 10). The lengthy Soviet paragraph was put to the vote in parts. All the provisions were rejected, but the vote on the language paragraph (with the right to speak in one's native tongue) was the closest. It was rejected by six votes to five, with five abstentions (pll). The closeness of this vote shows that this matter of minority language rights was not simply a Communist hobbyhorse routinely voted down, but a matter of deep moral and legal principle. All this concerned our Article 10. What passed in the Third Session was the U.K.-India text with a French amendment, making for a text without any language rights: "In the determination of his rights and obligations and of any criminal charge against him, everyone is entitled in full equality to a fair hearing by an independent and impartial tribunal" (E/800). It was adopted by 13 votes to 0, with 4 abstentions (p. 12). The second chance in the Third Session came with Article 11, which at that time said nothing about being guaranteed the means for a fair trial. A subcommittee consisting of the representatives of China, France, the U.K., India and Yugoslavia was asked to take a look at the article. It proposed the following text: "Everyone is presumed innocent until proved guilty according to law (in a public trial at which he has had all guarantees necessary for his defense)" (109). The last part of the sentence was placed in parentheses and had to be voted on separately because the members had been in disagreement about it. Wilson, the U.K. representative, and Omar Loufti, his colleague from Egypt, did not think the clause in parentheses was necessary (SR.55/p. 15). Cassin, the French delegate, disagreed and defended its inclusion on the grounds that "there had unfortunately been so many abuses under criminal law that it would be wrong not to specify that the accused had a right to the guarantees necessary for his defense. By 8 votes to 6, with 2 abstentions the Session decided to reject the phrase and so bar even the latent possibility of a language right. After the vote Pavlov objected and said he wanted more guarantees included in the article. Taking account of some Lebanese suggestions he formally moved that the text be changed to read that one is innocent until proven guilty "in a public trial subject to exceptions prescribed by law in the interest of public morals and national security and under conditions which ensure him in every case the guarantees necessary for his defense" (p. 17). Cassin, whose phrase "necessary guarantees" Pavlov had

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borrowed, expressed his approval and suggested some alterations in the flow of the ideas. The chairman asked the Lebanese, Soviet, and French delegates to come up with a joint text, which they did. It said: "Everyone charged with a penal offense is presumed to be innocent until proved guilty in a trial at which he will have had all the guarantees necessary for this defense. The trial shall be public" (SR.56/p. 2). It was adopted by a vote of 10 to 3, with 3 abstentions. At the stage of the Third Committee Pavlov had to decide when and where to resubmit his language paragraph. 34 It fit with what is now Article 10, which earlier in the proceedings had included some language guarantees. Or he could submit it to what became Article 11, where he just had had some success, working with Cassin, in the reinstitution of the principle that a defendant had a right to the means necessary for a good defense. The two men apparently did not discuss a common strategy, for Pavlov submitted it as an amendment to Article 10 (which speaks of "a fair ... hearing"), while Salomon Grumbach, the other French delegate to the Third Committee, said he could only support it if it had been submitted to Article 11. Pavlov also made the much more obvious mistake of submitting to Article 10 an amendment that contained three long paragraphs to be added to the Geneva text. He should have neatly inserted "the right to address the court in one's native tongue" into the appropriate place within the existing article and leave well enough alone. Grumbach observed that "the last paragraph of that [USSR] amendment ... introduced an extremely important idea of principle, not of implementation. It should certainly be inserted into the declaration, but would go more logically in [the Article 11] paragraph." 35 With that observation no doubt in mind, Pavlov "asked that the last paragraph of the USSR amendment be voted on separately without prejudice to its position in the declaration. That paragraph was extremely important for the protection of national minorities and the people of Non-Self-Governing Territories," he said (p. 262). He repeated this request just before the vote, but to no avail. It was rejected by 20 votes to 12, with 7 abstentions (p. 264). When Article 11 with the right of the defendant to be given "all the guarantees necessary for his defense" came up for discussion later on in the Third Committee no delegation brought out the fact that this included the right to address the court in a language one could speak, let alone the right to do so in one's native tongue. But the votes show that several delegations did think of the "necessary means" clause as including this particular right or something close to it. Those who voted to rehabilitate the clause in the Third Session knew that the two main sponsors of it were also supporters of a minority language right. The Soviet Union had been all along and the French had joined the effort in the Third Committee. This knowledge allows us to read the right into that clause. It is a reach, but not one without license. All four items-race, colour, national origin and language-protect members of ethnic, cultural, and linguistic minority groups from being discriminated against with respect to any of the rights in the Declaration. Such minority members cannot be kept from participating in the government of their countries (Article 21); they have just as much right to food, clothing, housing and medical care (Article 25) as members of majority groups; they have the same right to work (Article 23) and cannot be barred from holding public office (Article 21(2)); they have the same right to freedom of

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movement within and between countries (Articles 13 and 14); they also have the same right to a nationality (Article 15) and the protection that comes with that status. More specifically, the right not to be discriminated against on the basis of language applies to "all the rights and freedoms set forth in this Declaration." This includes all the legal rights mentioned in Articles 6 through 11. The right to "freedom of peaceful assembly and association" (Article 20) may not be abrogated because those who claim this right happen to speak a language that differs from the majority or national language. And no one may be denied the right to "a standard of living adequate for the health and well-being of himself and of his family" (Article 25) on account of what language he or she most naturally speaks. Nor can a person be barred from participation in government on these same grounds (Article 21).

3.4 Political Opinion, Property, and Birth Political or Other Opinion Unfortunately, preachers of religious, political, or moral ideologies seldom practice their preaching with the purity they recommend to their hearers. In regard to their dogma of nondiscrimination the Communists were no exception to this maxim. A glaring inconsistency exists in the Communist position when it comes to the freedom of holding certain political opinions. The item of political opinion has an in-and-then-out kind of history. Humphrey included the item in his H45 list of "race, sex, language, religion, or political creed." It was the only item that he added to the Charter list. The Indian delegation had proposed that the Declaration include an article stating that "every human being has the right of equality, without distinction of race, sex, language, religion, nationality or political belief." 36 This proposal was somewhat unusual; at that time most constitutions did not have "political belief" in their nondiscrimination lists, though China, Guatemala, and Panama did. 37 Also, the first article of the constitution of the American Federation of Labor (AFL) stated: "All economic or political discrimination and punishment for differences of political opinion ... are to be eliminated. The threat of being sent to concentration or labor camps as punishment for difference of opinion with any government authority or dominant political party must be completely removed." 38 The AFL director was an acquaintance of Humphrey's and the organization had placed its views before the Commission. One or several of these facts may explain Humphrey's adding the item "political creed" to the Charter list. In the rewrites Cassin submitted to the First Drafting Session he left the equivalent of the English word "political" out of the French text and used the phrase "political belief" in the English text. 39 This left the matter of whether to include the Humphrey item in limbo. Chang, the Chinese representative, thought the whole article should go to the Preamble, while Eleanor Roosevelt, the chair and U.S. representative, thought that just the word "belief" would do, as "it would cover all types [of belief] and not be limited to the one specified" (SR.12/p. 5). Apparently, Koretsky, the delegate from the USSR, asked her what she meant, because the minutes record Roosevelt answering "that elimination of the word ·political' broadened the article" (p. 5).

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Neither of these two delegates seems to have realized the significance of their exchange, for in this one word "political" were focused all the Western objections to Communist discriminatory practices on the basis of political beliefs and party affiliation. Communist constitutions do not usually include "political opinion" in their list of nondiscrimination items. The 1940's constitution of the Soviet Union gave citizens the right to vote "irrespective of race, nationality, religion, educational and residential qualifications, social origin, property status or past activities," but not irrespective of political opinion. Other communist nations had similar exclusionary rules.40 Malik, the representative from Lebanon, did understand the significance of the exchange between Roosevelt and Koretsky. He wanted the word "political" retained, he said, because "politics was one of the fundamental activities of man in which discrimination existed. He felt that the Commission on Human Rights should decide whether or not discrimination was allowable on the basis of political belief. ... [And] there was no harm in stating that man is free to hold political convictions without danger of discrimination and persecution" (SR.12/p. 12). No vote was taken on the matter. It was agreed that the article should be referred to the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. Roosevelt explained that her government had agreed "to the words of the Charter being retained," which did not include the item "political opinion." By that fiat only the Charter list was formally passed on to the Sub-Commission with a request for advice (p. 6). As he had in the case of "colour," Masani, the Indian expert, took the initiative in getting the "political opinion" item restored. Again, the immediate problem was that some of the experts (who did not speak for their countries in a formal capacity) were hesitant about adding any items to the Charter list of "race, sex, language, or religion." In his opening speech Masani noted that "political minorities were becoming increasingly important. It was no longer a case of oppression by a king or a group of aristocrats," he said, "but of an all-powerful State repressing dissident groups of thought" (Sub.2/SR.3/p. 4). He noted the absence of "political opinion" on the list that had come down from the Drafting Committee and suggested that the item be "added at the end of the article" (p. 2). He wanted "to extend to political opinions the protection granted by the article to religious beliefs. The minorities that would need protection in the future would be more in the nature of political minorities," he felt, "than the traditional religious minorities which were tending to disappear" (p. 6). This proposal received the immediate support of Monroe, the British expert on the Sub-Commission, from Roy, the Haitian expert, and from Spanien, the French expert, who thought that in this matter "there was a gap in the Charter that ought to be filled" (p. 6). However, he thought it was better to omit the word "political" and make the article prohibit discrimination on the basis of all sorts of opinions and not just the political ones singled out by the Masani proposal. McNamara, the Australian expert, "urged that the freedoms not expressly guaranteed were always in danger of being denied" and he regarded Masani's amendment as "essential." In light of the fact that "in some countries discrimination was based on political opinion, [i]t was important that [it] should not be denied," he said (p. 5). Seeking to steer between the Indian addition of "political opinion" and the French one of just "opinion," he suggested that the phrase "political or other opinion" be added to the list. This text, he argued, "while

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emphasizing the importance of political opinion ... could apply to any other opinion" as well (p. 7). Experts opposed to McNamara's suggestion included Daniels of the U.S., the SubCommittee's chair Ekstrand of Sweden, Shafaq of Iran, and Nisot of Belgium, all of whom objected to making changes in the Charter list of "race, sex, language and religion." However, with the exception ofNisot, they were not strongly opposed. Daniels, for instance, felt that the same format should be used in all cases. They "should either accept the terminology of the Charter" and add notes, as they had done in the case of "colour," or both "colour" and "political opinion" should formally be added to the list (p. 7). Wu, the Chinese expert, thought that "political opinion itself was one of the fundamental freedoms and rights, not a qualification of those entitled to them." This view had at first placed him in opposition to the proposal, but upon reflection he decided that if "political opinion" could be made to refer to party membership, the addition would not be objectionable (p. 7). "Party affiliation" was mentioned in the Chinese constitution as one characteristic that "shall not" undercut the equality before the law of Chinese citizens, which no doubt helped Wu change his mind.41 After Masani accepted the McNamara addition of "or other" to his own "political opinion" amendment, both additions were approved and an other step beyond the Charter list had been taken (p. 11). Given the fact that the entire Communist system was based on a merger of the party and the state apparatus and allowed no room for multi-party elections, it comes as no surprise that Communist delegates at various stages of the drafting process sought to undo the "damage" and get the item deleted. The first move was made in the Sub-Commission itself, right after the addition had been made. Borisov, the expert from the USSR, came with a proposal that consisted of two paragraphs. Combining phrases from two articles of the Soviet Constitution, Borisov proposed this wording: "All people are equal before the law and shall enjoy equal rights in the economic, cultural, social, and political life, irrespective of their race, sex, language, religion, property status, national or social origin." 42 The main difference between this proposal and what had already been accepted was the deletion of the contested item "political or other opinion" and the addition of the new items "property status, national or social origin." What matters to us here is the deletion that would take place if this proposal was accepted. Borisov insisted that his proposal was "intended to replace Article 6 and could therefore not be regarded as an amendment," to which the chairman, Ekstrand, responded that "all propositions were amendments" (Sub.2/SR.6/p. 9). The point was that in an amendment the earlier list was not necessarily replaced, but only complemented by that part of the Borisov list that was new. When Borisov still insisted on the all or nothing approach of his substitute proposal, the Sub-Commission voted down his list by 7 votes to 1, with 3 abstentions and accepted an other list proposed by McNamara from Australia and Wu from China. That McNamara-Wu proposal had the new items plus all of the old ones: "Everyone is entitled to [all] the rights and freedoms set forth in this Declaration, without distinction of any kind as to [such as] race, sex, language, religion, property status, national or social origin, political or other opinion." 43 The phrase "political or other opinion" was adopted by 10 votes, with 1 abstention. The

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other items having been adopted previously, the remaining phrase "property status, national or social origin" was adopted by 6 votes, with 5 abstentions (SR.6/p. 14). This new and greatly expanded list was sent to the Second Session of the Commission on Human Rights. The Soviet delegation to the Second Session repeated the attempt to get the Borisov's list substituted for what had been accepted. Since now the only real difference was that the already adopted list included the item "political or other opinion" and the proposed substitute did not, it is clear that the goal of the Soviet amendment was to get the item "political opinion" removed from the list. The attempt failed again. Both the Belgian and British delegates objected to the substitute list. To Dehousse, the Belgian representative, the Soviet amendment was "unacceptable" because "there was no mention [in it] of 'political opinion' (SR.35/p. 3). His British colleague, Lord Dukeston, was even more blunt. He said he would vote against the Soviet amendment "because it did not protect the individual against discrimination on the grounds of his political opinion ... [and] a one-party Government would not be obliged to take measures to safeguard the freedom of those professing a different political opinion from its own" (p. 3). This observation underscores the importance of the item on the nondiscrimination list. In the Chapter on the influence of the Holocaust we saw that in the adoption of Article 21, which states the right of everyone to participate in government, the Commission did not stipulate that free elections had to be part of a multi-party system. Article 21 of the Declaration does not explicitly demand that the will of the people be expressed through the modern machinery of multi-party political systems. Lord Dukes ton's comment reminds us that if we combine the rights of Articles 2 and 21 of the Declaration, then we do get a demand for that kind of multi-party system. People cannot be denied the right to participate in government and its machinery on the basis of their "political or other opinion." Since Communist ideology does not recognize the validity of political ideas other than those accepted by the one party that supposedly represents all the people, there is no room in such a system for legitimate political minorities. The drafters intended to condemn these kinds of arrangements, which is why the Communists never succeeded in getting the disputed item to be struck from the nondiscrimination list. Since the Communist delegations could not or did not want to admit that their nations grossly discriminated against people on the basis of their political opinion, they invariably gave the threat of renewed Nazism and fascism as the rationale for their position. According to Bogomolov, "it was logical for the terms 'political or other opinion' to be omitted from the Soviet proposal" because "there were political opinions which tolerated not only the advocacy of racial or national hatred, but also the actions arising therefrom" (p. 4). Since Nazis and fascist groups might claim equal participation in public life on the basis of an item like freedom of political opinion, Bogomolov thought it wiser to be on the safe side and remove the item. When Santa Cruz, the Chilean delegate, asked whether this meant that an individual could be persecuted for political opinions, the Russian delegate said that that was not the point, the issue being "whether propaganda and actions based on national and racial hatred" should be permitted. The Soviet delegate had the Nazi ideology in mind and it was his country's strong wish not to grant political freedom to that group.

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The drafters did not accept this particular Soviet rationale and rejected the proposed substitute list 10 to 4 with 3 abstentions (p. 5).

Property, Birth, or Other Status The phrase "property, birth, or other status" is what was left from the Borisov proposal after "national or social origin" had been adopted and the Third Committee later inserted "birth." In the Sub-Commission's discussion of the longer list "property status, or national or social origin," most of the attention went to the item of "national or social origin," and of these two the word "national" was the most important. Furthermore, contrary to what one might expect, almost none of the experts commented on the phrase "property status." 44 How could property ownership or other economic factors possibly be related to the question of whether or not someone has a certain inherent human right? The answer gains in importance once we realize that the prohibition of discrimination on the basis of "property status" is attached to everyone's entitlement to "all the rights and freedoms set forth in this Declaration." Take, for instance, the right to an education, which is the subject of Article 26. The present prohibition in effect says that everyone has an equal right to an education and that no distinctions based on "property status" are to be made in the implementation of this right. In some countries of the world the children of the very poor receive no education at all and in many countries, including the United States, the quality of a child's elementary and secondary education is often directly related to the "property status" of his or her parents or guardians.45 All such differences are in violation of the Declaration. The Belgian expert on the Sub-Commission, Nisot, saw the radical character of this item on the list and "pointed out that there might be a political connotation in the words 'property status' since in some countries income was one of the factors considered in determining the right to vote" (Sub.2/SR.5/p. 9). In the Second Session of the Commission and in the Second Session of the Drafting Committee no questions were raised about the property status item. In the Third Session of the Commission this item also slipped by almost unnoticed, except that Klekovkin, the representative of the UKSSR, "proposed the insertion of the concept of soslavie" (the apparent meaning of which is class or social status) after the words "property status." "The distinction," he said, "would have validity in a number of countries." A discussion of this concept took place, but the Commission could not find an exact English equivalent. Both Wilson, the U.K. representative, and Roosevelt, the U.S. representative and chair, thought it better to delete the word "property," "leaving the word 'status,' which would then be all-inclusive" (SR.52/p. 4). This fits with the objections to the word "class" made by the experts from these countries had made in the Sub-Commission discussions. Pavlov, the delegate from the USSR, saw the danger of Klekovkin's proposal, tampering as it did with the gains made by Borisov in the Sub-Commission. Pavlov "thought that the word 'property' should remain; it was most important that rich and poor should have the same rights. The Ukrainian amendment was directed against feudal class privileges, which were generally determined by birth rather than wealth,"

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he said (p. 5). The danger to the word "property" was avoided when Klekovkin "accepted the suggestion of Mr. Chang (China) to insert the words 'or other' between the words 'property' and 'status,' which would meet the point he wished to make." Apparently between the Third Session and the meetings of the Third Committee, Pavlov changed his mind. While he had not come to the rescue of the Ukrainian amendment discussed above, he now formally proposed to the Third Committee that the word "class" be added after the words "property or other status" (A/C.3/256). He explained to his colleagues that "the USSR amendment aimed at the abolition of differences based on social conditions as well as the privileges enjoyed by certain groups in the economic and legal fields. On the eve of the Russian revolution the situation in Russia was similar to that in France before its revolution; there were certain privileged classes, such as great landowners, the clergy, merchants, and others. One of the first measures taken during the Russian revolution was to suppress those privileges and prevent their revival" (p. 134). Cassin, the French representative was the first to respond. He said he was "prepared to support the USSR amendment [to add 'class'] as far as its substance was concerned, although it could have been covered by the words 'property or other status'" (p. 134). Roosevelt also recollected that the accommodation of views like Pavlov's was one of the reasons the Commission had added the words "or other" to the original phrase "property status." Upon the suggestion of Cassin a small drafting committee was set up consisting of the representatives of France, the United States and the USSR. This committee returned with the suggestion that the Russian version of the list in Article 2 should contain the word soslovie, the French one the word naissance and the English one the word birth. The group added the note that "the literal translation of the word 'soslovie' would be 'etat' in French and 'estate' in English, but the Group noted that those words, as currently used, no longer had their former meaning" (p. 134). This proposal meant that Pavlov agreed to change his amendment from adding "class" to adding "birth" to the English text of the Declaration. He was able to make this shift because the Informal Drafting Group "had agreed that the Russian word 'soslovie' referred to a legally-sanctioned inequality such as had existed in feudal Europe when different groups of people had, by reason of their birth, different rights and privileges. Although such inequalities no longer existed in most countries, there were still some remnants of that social structure left; the fight against those remnants should be continued by a definite statement in the draft declaration" (p. 138). In other words, the meaning of the item "birth" on the list of Article 2 is to prohibit discrimination on the basis of inherited legal, social, and economic differences. If we once again recall that this prohibition is attached to "all the rights and freedoms set forth in this Declaration," then we can see that this item too calls for a far-reaching egalitarianism. One wonders how many of the drafters understood and accepted this. The answer we get from the discussion that followed and from my exposition of the social and economic rights in Chapters Five and Six is that almost all of them did. It turns out that many delegates to the Third Committee might even have accepted the word "class" itself. Christopher Mayhew, the delegate from the U.K., thought the word "birth" acceptable, "although he would have preferred a reference to 'class' in the sense of inherited privileges for the sons of noblemen, capitalists, party leaders, and so on. The government of the United Kingdom,'' he added, "was working on just such a classless

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society" (p. 134). Count Carton de Wiart, the Belgian representative, said that after hearing the discussion, "his delegation found the Drafting Group's suggestion was more comprehensible, although it still preferred the original USSR proposal" of the word "class." The Mexican representative, De Alba, also thought the small committee had yielded too quickly to the linguistic difficulties. He understood that Pavlov "had wanted to say that there should be no 'inherited privileges,' but even that expression was not sufficiently clear." He felt that the Drafting Group should have stuck with the word "class" for the English text, for that word, he said, "had been in use a long time before the appearance of the Communist Manifesto, as was shown in the writings of Thomasjefferson" (p. 138). In any case, the proposal had now been changed to "birth" and several delegates made the point that this word created a possible conflict with Article 1 of the Declaration, which says that "all human beings are born free and equal." Thus, the Cuban delegate, Perez Cisneros, "agreed fully with the proposed addition, but questioned the appropriateness of the word itself." The Declaration should not in Article 2 give the impression that a "distinction could be made between human beings for reasons of birth" and state in Article 1 that we are all born in a status of equality.(137). For that reason he suggested the phrase "social conditions" or "social status." Watt, the Australian delegate, agreed with the Cuban representative that it "was dangerous to insert the word "birth" into Article Two." It would lead to a confusion as to whether the Declaration was serious about people being born "free and equal in dignity and rights." He therefore preferred the phrase "other status" that was already in the article (p. 138). I mention these details because the insertion of the word "birth" into Article 2 shows that the drafters understood and were serious about the inherent character of human rights. That is what the word "born" in Article 1 means and, as I explain in Chapter Eight, it reinforces the occurrence of "inherent" and "inalienable" in the first recital of the Preamble. Article 2 supports this notion of inherence because the occurrence of the word "birth" on the nondiscrimination list prohibits social and economic factors, whether or not inherited, from being used to undercut that initial moral equality we all have at birth. An interesting detail is that at one point Mohammed Habib, the representative from India, said he "favored the use of the word 'caste' rather than 'birth' as the latter was already implied in the Article" (p. 138). This observation led several delegates to state their objections to both "caste" and "class" as not "accurate" (Uruguay), as categories that "human beings were trying to outgrow" (U.S.), or as too "specific" (Philippines). Another Indian delegate, A. Appadorai, responded that "his delegation had only proposed the word 'caste' because it objected to the word 'birth.' The words 'other status' and 'social origin' were sufficiently broad to cover the whole field." 46 Misgivings like these probably led to the narrow vote with which the insertion of the word "birth" into the English text was adopted-19 votes to 16, with 7 abstentions.47 After it had done most of the work on the Declaration, the Third Committee set up a subcommittee "to examine the totality of the declaration ... solely from the standpoint of arrangement, consistency, uniformity and style and to submit proposals thereon to the Third Committee" (p. 120). Eleven countries were represented on the Style Committee, of which Cassin, the French representative, was the chair. This subcommittee turned in a report in which the item "birth" had been moved from the

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end of the list ("such as race, color, sex, language, religion, political or other opinion, property or other status, birth, or national or social origin") to the middle of the list ("such as race, color, sex, religion, birth, national or social origin, political or other opinion, property or other status"). As soon as he had the opportunity, Alexander Bogomolov of the USSR "criticized the alterations made by the Sub-Committee" because, as he saw it, they "deprived the word "birth" of the sense which it was intended to have" (p. 851). He was doubly upset: he really had wanted the word "estate," but had settled for the term "birth" and now the meaning of that term had been undercut by its new placement in the list. He wanted to go back to the list adopted by the Third Committee. Cassin did "not agree that the change in the position of the word 'birth' had robbed it of its meaning." Chang, the Chinese representative, and Perez Cisneros, the Cuban representative, both of whom had served on the subcommittee, also favored the new text "for reasons of form" (p. 852). Bogomolov said he did not understand the French position. "The regime of 'estates' had, it was true, disappeared in Russia as it had in France, but the historical term did nevertheless remain. It should not be forgotten that the declaration of human rights should also apply to countries which had not yet evolved as fully as had France and the USSR, and that there were still backward countries, in some of which castes and privileges, attached to 'estates' still existed" (p. 852). That sense of "birth" was gutted by having it appear in the earlier context of race, sex, language and religion, and not in the context or vicinity of the later social and economic items. Karim Azkoul of Lebanon agreed with Bogomolov's argument and as a member of the Style Committee he had "voted against the new text because the alteration made considerably affected the sense of the paragraph" (p. 852). He proposed the list we now have: "without distinction of any kind such as, race, sex, language, religion, political or other opinion, national or social origin, property, birth or [any] other status." This text was adopted unanimously.48 The original context of the item "birth" having been restored, its original meaning of (mostly inherited) social and economic privileges was also restored. Cassin had said that placed after the word "religion" the word "birth" "could not lead to ambiguities or acquire biological implications" (p. 851). Perhaps not, but the meaning of the term in that earlier spot is not nearly as obvious as it is in its restored place, right after the items "social origin" and "property" and just before "any other status." While in Article 1 the word "born" had a metaphysical and moral meaning, in Article 2 the word "birth" carries a social and economic meaning, which is why there is no conflict between the birth in Article 1 and the birth in Article 2 of the Declaration. On the contrary, the occurrence in Article 2 reinforces the one in Article 1.

3.5 The Womens Lobby and Womens Rights In the opening paragraph of their Charter, the peoples of the United Nations say that they are determined to "reaffirm [their] faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women." And when the Charter talks about the organs that are to implement the goals of the UN it expressly states that "the United Nations shall place no restrictions on the eligibility

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of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs." 49 In the Charter, discrimination on the basis of sex is singled out from among the list of possible items and specifically prohibited. This is why Denmark had no trouble in the First General Assembly of 1946 to have a resolution passed which asked member states to adopt "measures necessary to fulfill the purposes and aims of the Charter by granting women the same political rights as men" (E/615/p. 2). It is also why the Economic and Social Council appointed a Sub-Commission on the Status of Women to "submit proposals recommendations and reports to the Commission of Human Rights." 50 However, this line of authority did not suit the Sub-Commission. Humphrey tells us in his memoirs that at the second session of the ECOSOC the Sub-Commission's chairman, Bodi! Begtrup of Denmark said women did not want to be dependent "on the pace of an other commission." The Council "acceded to her request and the organic link between the two bodies was severed" when Begtrup's Commission was made to report directly to the ECOSOC instead of via the Human Rights Commission that was chaired by Eleanor Roosevelt. 51 When the Commission on Human Rights came to discuss its tasks, Roosevelt immediately pointed out that "there might be some duplication" between the Commission's mandated interest in the "status of women" and the newly created, independent commission by that name. She pointed out that the Commission, if it so chose, could have its terms ofreference changed (SR.1/p. 6). Valentin Tepliakov, the delegate from the USSR, said that "when it came to a discussion on the International Bill of Rights, the commission was entitled to deal with all questions within the field of human rights," and he opposed striking out the words "status of women" from the scope of the Commission's interest. He was supported in this by Carlos Romulo of the Philippines and Metha of India. The Commission on Human Rights, with Eleanor Roosevelt as chair, did not actively seek to stay in touch with the Commission on the Status of Women, of which Begtrup from Denmark was the first chairperson. The two commissions threatened to drift apart. As a result, the Economic and Social Council, in a special resolution and upon the urging of Begtrup's commission, had to request the Human Rights Commission "to invite the officers of the Commission on the Status of Women to be present and participate without voting ... when the rights of women were being considered." 52 This was done. It seems that the lack of sexism in the Universal Declaration is primarily due to the aggressive lobbying of Begtrup and the steady pressure of the Soviet delegation. Of Mrs. Begtrup's commission, Humphey reports that "more perhaps than any other United Nations body the delegates to the Commission on the Status of Women were personally committed to its objectives .... [They] acted as a kind of lobby for the women of the world." Adds Humphrey: "There was no more independent body in the UN. Many governments had appointed ... as their representatives women who were militants in their own countries." Humphrey also notes that "the Soviet Union was proud of its record in the matter of the equality of men and women and ... often attacked the Western countries for their 'backwardness.' " 53 When the Third Session of the Commission reproduced the UN Charter's opening affirmation of faith in the fourth recital of the Declaration, it left out the refer-

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ence to gender equality. At the Third Committee stage Lakshimi Menon, the delegate from India, called attention to the fact that "the fourth recital which reproduced the language of the preamble to the Charter did not reproduce the phrase "the equal rights of men and women" contained in that passage of the Charter" (p. 764). Such an omission, she said would seem deliberate and hence invite sex-based discrimination. Minerva Bernardino, the delegate from the Dominican Republic, also wanted to correct the omission. Her delegation "was aware that in certain countries the term 'everyone' did not necessarily mean every individual, regardless of sex. Certain countries did in fact recognize certain rights for 'everyone,' but experience had shown that women did not enjoy them, as, for instance, voting rights" (p. 771). The addition was approved with a vote of 32 to 2, with 3 abstentions. The United States and China voted against it (p. 788). The present repetition in almost every article of the unqualified words "all," "everyone" and "no one" gives the reader a clear message that the Declaration is not a sexist document. 54 In this respect it is very different from its Enlightenment predecessors. In the General Assembly debate Begtrup recalled "that the Declaration of the Rights of Man and of Citizen ... which had so solemnly laid down the fundamental freedoms, made no mention of the rights of women and did not even imply them. The world had evolved since then," she said (p. 892). In the Second Session's Working Group she had made the suggestion that to the Declaration's Preamble be added a phrase or note stating that "when a word indicating the masculine sex is used in the following Bill of Rights, the provision is to be considered as applying without discrimination to women" (SR.2/p. 2). Her point was not voted upon, nor discussed. This left her Commission no choice but to seek to protect the status of women in the Declaration article by article, beginning with Article 1. Most of the early versions of Article 1 started out with the phrase "all men," and from the start various delegates expressed dissatisfaction with that phrase.55 In the First Session of the Drafting Committee, Koretsky, the delegate from the USSR, argued against the exclusivity of starting any article with "all men." He objected to the understanding of some members that all persons were included in this phrase, for "this implied an historical reflection on the mastery of men over women" and he hoped the phrase could "be modified in some way to make it clear that all human beings were included" (SR.13/p. 6). Ralph Harry, the Australian delegate, thought "the problem insoluble" and pointed out that "in the Charter itself reference was made to "mankind" and not to "mankind and womankind" (p. 6). This prompted Roosevelt, the U.S. delegate, to add that "it had become customary to say 'mankind' and mean both men and women without differentiation" (p. 7). The disagreement was carried over into the Second Session of the Commission. There too, attempts to change the text failed. In a meeting of that Session's Working Group Begtrup sought to have the term "human beings" substituted for the term "men." Roosevelt told her that that "was not advisable due to a question of translation affecting the French text" (AC.2/SR.2/p. 4). After that failure, Metha, the delegate from India, raised the issue in the regular session of the Commission, saying that "she did not like the wording of 'all men' or 'should act ... like brothers.' " Such phrases, she said "might be interpreted to exclude women, and were out of date" (SR.34/p. 4). Roosevelt again made the point that "the word "men" used in this sense was gener-

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ally accepted to include all human beings." After the phrase "all men" was adopted with a vote of 12 to 0, with 5 abstentions, Lord Dukeston, the British representative, suggested that the Declaration contain a note stating that in the document the word "men" referred to "all human beings" (p. 5). Metha did not object to the U.K. suggestion, but still preferred to see a change to "human beings" or "persons," since ''Article 1 was the only place in the Declaration where the expression 'men' appeared." The U.K. suggestion about a note was adopted by 12 votes to 1, with 3 abstentions. In its comment on Article l, the Dutch government took exception to that note, thinking it "superfluous to state explicitly that the word "men" implies both men and women" (85/p. 14). Nothing was changed until the Third Session of the Commission. By this time the Commission had via the Secretary-General received a draft of Article 1 from the Commission on the Status of Women (E/CN.4/81), which proposed that "all people" be substituted for "all men" and "in the spirit of brotherhood" for "like brothers." Amilia C. de Castillo Ledon, vice-chairman of the Commission on the Status of Women, said that while "her Commission understood that the term 'all men' had a general sense, there was a certain ambiguity in it and it would be better to use the more precise term, which moreover figured in the Charter" (SR.50/p. 9). Other suggestions before the Commission were a joined U.K.-India proposal to use the phrase "all people, men and women," and a French proposal that started the article with the phrase "all members of the human family." 56 Pavlov, the representative of the USSR, pointed out that the phrase "all people, men and women" would be difficult to translate into Russian "as in that language women were automatically included in the notion of 'people'" (SR.50/p. 13). The same redundancy affects the U.K.-India text, which the United States supported because it expressed "the principle of equality for men and women" and showed the conviction that "discrimination against women had no place in the laws of any state" (p. 9). Ronald Lebeau, the Belgian delegate, pointed to the absurdity of tous les hommes, hommes et femmes and proposed the compromise phrase of "all human beings" (p. 11). Hansa Metha wanted to hear what the Commission on the Status of Women thought was the best text. Ledon responded that the terminology suggested by Lebeau best suited her Commission. But when the vote came, the U.K.-India phrase "all people, men and women," as well as the phrase "in the spirit of brotherhood" were adopted (p. 14). On behalf of her Commission, Ledon thanked "the Commission [on Human Rights] for the amendment it had adopted to Article 1, which although slightly different from the one proposed by the Commission on the Status of Women was in conformity with its wishes" (p. 17). At this point we are faced with a puzzle about the transmission of the text from the Third Session to the Third Committee. As I just showed, the Commission on Human Rights, in its Third Session, had approved the Uk-India phrase "all people, men and women." Yet, the Secretariat's draft of the report for that Third Session begins Article 1 with the phrase "all human beings" (148/Add.l). This draft was approved for transmission to the ECOSOC without anyone pointing out the discrepancy between what the Commission had decided and this report (SR.81). As a result of this error all subsequent drafts of the Declaration contain the compromise phrase "all human beings," first suggested by Lebeau, the Belgian delegate. In neither the Third Committee nor General Assembly debates was the issue of the opening wording of Article 1

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ever raised again. Both bodies approved the present phrase, which, though not explicit about the equality of men and women, frees Article 1 of all sexist implications. The rest of the Declaration is equally free of sexist language, except for the phrase "himself and his family" which occurs in Articles 23 and 25 (see 5.5 and 6.1). If women are to have human rights in their own persons and as the individuals that they are, they must not only have them only as homemakers and mothers. Yet the phrase "himself and his family" in these Articles 23 and 25 could suggest that reading, and the women's lobby missed these deletions in their campaign. The phrase suggests that there is one family wage and that it is earned by the man. It hints at a division of labor between the sexes which contemporary feminists rightly reject. Historically, the language of "a family wage" is very much part of a sexist way of thinking. "By the end of the nineteenth century," Eli Zaretsky tells us, "the politics of socialists, feminists, and trade unionists had converged on the same demand for a 'living' or 'family' wage for the working class family, i.e. a single male wage large enough to support a family." 57 The women's lobby never sought to have the word "his" in these two articles changed to some more neutral, nonsexist terminology, one just as suited to express the workrelated and social security points being made. Perhaps we should not be surprised by this oversight. The earliest Humphrey draft, which was gleaned from the constitutions of the member states, stated that "Everyone has the right to such public help as may be necessary to make it possible for him to support his family" (AC.1/11/p. 45). The constitution of Iceland, for instance, stated that "anyone who is unable to support himself or his family ... is entitled to receive" public funds (AC.l/Add.1/p. 344). The International Federation of Christian Trade Unions submitted a draft that spoke of a person's right to work under conditions such "that his labor enables him to support himself and his family" (AC.1/11/p. 45). And in one of his early drafts Professor Cassin wrote that human labor "shall give a decent standard of living to the worker and his family" (AC.1/W.2/Rev.l). Articles 23 and 25 reflect this language and the women's lobby let it stand. The cleaning up Article 1 and not this oversight involving a worker and "his family" represents the real attitude of the drafters and they took the Charter mandate about the equality of the sexes in the enjoyment of all human rights with the utmost seriousness. The following discussion centers on the equal marriage rights in Article 16, voting rights in Article 21, and the right to equal pay for equal work in Article 23. In our discussion of legal rights in the Declaration we saw that Article 6, about equality before the law, and Article 16, about marriage and the family, initially were combined. For example, one of the early Cassin drafts read: "Everyone has the right to a legal personality. Everyone has the right to contract marriage in accordance with the laws of the state" (AC.1/W.2/Rev.1). Concerning equality before the law, the Soviet delegation twice raised the issue of discrimination against women. In the Second Session of the Drafting Committee, Pavlov wanted to know what this article meant in light of the fact that "in the State of Georgia of the United States, a married woman had no legal existence apart from her husband's." Roosevelt answered that in her country the phrase "fundamental civil rights" -which at that time was used in discussing the article- "varied from State to State" (SR.37/p. 7). In the Third Session of the Commission, there even was an attempt to drop this article on the right to a legal personality entirely. The British, Indian and American

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delegations felt that the general article on nondiscrimination was sufficient and that there was therefore no need to enter into the murky waters of what it means to be a "person before the law." Pavlov joined his French colleague in wanting to retain the idea of a ''.juridical personality." He pointed out that apart from attempts against whole groups, such as those against the Jews in Germany, account must be taken of the fact that some civil legislation still contained restrictive provisions regarding juridical personality of individuals. Thus, in certain cases, a wife had no juridical personality independent from that of her husband. It was the Commission's duty to combat all discrimination, including discrimination based on sex, which was still prevalent in several countries and he did not see why [the Commission] should reject an article that could not fail to be of value from that point of view. (SR.58/p. 4)

The article was retained by 12 votes, with 4 abstentions. In the meantime, the Drafting Committee had referred the questions about marriage and the family to the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. The Commission had felt that any suggestions from the Commission on the Status of Women should be routed through that Sub-Commission. As a result the Sub-Commission sought to consult with the Commission on the Status of Women. The delay this routing through the Sub-Commission caused annoyed Begtrup, chair of the Commission on the Status of Women, "in view of the conclusions recorded in the last report of the Commission." That report (E/281/Rev.1) had been submitted almost a year earlier. She told the Working Group of the Second Session that her report had advocated full equality of civil rights "irrespective of marriage, race, language, or religion" (SR.5/p. 8). It had also said that civil marriage should involve freedom of choice, the dignity of the wife, monogamy, the equal right to the dissolution of marriage, the equal right to guardianship, the right to keep one's nationality, the right to make contracts, and the right to own property. And it went on to make some progressive social recommendations such as leaves with pay for pregnant women and equal access to an education for women (E/281/Rev.1/p. 12). For its rationale the Commission on the Status of Women had referred to the United Nation's Charter, where "the equal rights of men and women" are expressly stated as a goal of the organization. Begtrup could not see why the Commission on Human Rights was backing away from tackling the article on women and the family. Perhaps the delegates sensed the upcoming fight about divorce; on that issue they were deeply divided. In the Working Group of the Second Session, the Byelorussian delegation proposed the idea that "marriage and the family shall be protected by the state and regulated by law ... on the basis of equal rights for men and women" (AC.2/SR.6/p. 2). At first no mention of divorce was made, but then Roosevelt, on behalf of the United States delegation, proposed that "women and men shall have the same freedom to marry and to choice of marriage partner, and the same access to remedies for breach of marriage" (p. 2). Ironically, this is the first mention of the possibility of divorce by a delegation which later was to back away from inclusion of the idea. Roman de Romer, who represented the International Union of Catholic Women Leagues, preferred "a text affirming equality as regards marriage without specifying whether it was a case of contracting marriage or dissolving it" (p. 3). She was immediately and "warmly sup-

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ported" by August Van Istendael, the representative of the International Federation of Christian Trade Unions. At this point in the deliberations neither Evdokia Uralova, the Rapporteur of the Commission on the Status of Women, nor Bogomolov, the Soviet representative, brought up the matter of divorce. The latter felt that "the question of marriage should be examined from the angle of the protection which the State must give the home, and the main emphasis should be placed on the protection of children" (p. 4). M. Amado, the Panamanian representative, said that his delegation could not accept most proposals since "some States were bound by laws based on Concordats with the church and had, in respect of religious marriage and divorce, obligations which would not permit them to accept the proposed texts" (p. 3). He must have been reacting to the United States proposal, which spoke of the breach of marriage. The Working Group voted to adopt the reading "that men and women shall have the same freedom to contract marriage in accordance with the law." 58 The question of divorce had been sidestepped. While the Second Session of the Commission on Human Rights had before it the report of the First Session of the Commission On the Status of Women, it had not yet received a text for Article 1. Such a text was proposed by the Second Session of the Commission on the Status of Women, which met in January 1948. It read: "Men and women shall have equal rights to contract or dissolve marriage in accordance with law" (E/CN.4/p. 281). This text came up for consideration in the Second Session of the Drafting Committee and it brought the disagreements about divorce rights in the open. Dropping the earlier reference to divorce, Roosevelt, acting for the United States, now proposed a much more benign version: "Men and women shall have the same rights to contract marriage in accordance with law" (SR.38/p. 12). Van Istendael, the representative of the International Federation of Christian Trade Unions, had a clear preference. "He drew the Committee's attention to the controversy which the text proposed by the Commission on the Status of Women might raise. The dissolution of marriage was unacceptable to millions of Christians and the text proposed was in contradiction to that belief" (p. 13). He therefore wanted the equal rights of men and women affirmed without explicit mention of the matter of divorce. This idea carried the vote. The text of the Commission on the Status of Women was voted down (by 3 votes to O with 2 abstentions), and (by 5 votes to 1 with 1 abstention) this United States text was adopted: "Men and women shall have equal rights as to marriage in accordance with law" (p. 13). At the beginning of the Thim Session of the Commission, Ledon, vice-chairman of the Commission on the Status of Women, came back to this defeat and sought to explain her Commission's position. It was not that the Commission demanded that divorce be made legal-though it could easily have argued so on the basis of the separation of church and state - but that it "had felt obliged to take account not only of the views of groups that did not recognize divorce, but also of the existing situation in countries where, divorce being legally recognized, the relevant legislation usually placed women at a disadvantage" (SR.58/p. 15). She was supported in this stance by Stepanenko, the Byelorussian representative, who also felt that women should be guaranteed "the same rights as men not only to contract but also to dissolve the marriage ties" (p. 12). The Soviet delegation also made the dissolution point explicit in

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its proposal. Again, the representatives of various Christian groups spoke up against any explicit mention of divorce. Van Istendael said that "if the Declaration proclaimed the right to dissolve marriage, it would be unacceptable to hundreds of millions of Christians in countries that were Members of the United Nations" (p. 16). Catherine Schaeffer, who represented the International Union of Catholic Women's Leagues, "pointed out that her organization comprised 36 million women divided among 120 associations in 60 countries," all of whose consciences would be offended by the "principle of the dissolution of marriage" (p. 16). Given these divergent opinions, it is understandable that some delegations were drawn toward the simple, not very controversial phrasing of the U.K.-India text, which stated simply that "men and women are entitled to equal rights as to marriage" (99/p. 4). This phrase "as to marriage" became the end of the first sentence of the article and was as such passed on to the Third Committee (SR.62/p. 10). At this point Pavlov, the delegate from the C'SSR, pointed out that the Commission had inadvertently left out the idea of the need for the "full consent of both parties" -which had long been a point of consensus among the delegates-as well the idea of the dissolution of marriage, "which was intended to protect the woman from the loss of property which she frequently incurred as a result of divorce" (p. 11). The Third Committee voted on both points: upheld the consent question, but turned down the divorce issue. When Article 16 arrived at the Third Committee, it had the following three paragraphs: (1) "Men and women of full age have the right to marry and to found a family and are entitled to equal rights as to marriage"; (2) "Marriage shall be entered into only with the full consent of both intending spouses"; and (3) "The family is the natural and fundamental group unit of society and is entitled to protection." The difference between this text and the final one lies in the addition of the phrases "without any limitation due to race, nationality or religion" and "during marriage and at its dissolution," both to the first paragraph. In the second paragraph, the consent was not only made full, but also free, while in the third paragraph, to the idea of protection was added that it be done "by society and the state." Upon the recommendation of the Lebanese delegation and with a vote of 3 to 0 and 5 abstentions the word "free" was added (p. 376). The phrase that calls for the family's protection "by society and the State" was proposed by the Soviet Union and passed with a comfortable 2 to 1 margin (p. 376). This is the only place in the Declaration where the power of the state is invoked as a protective device and as such it underscores the high regard all delegates had for the family (see 7.2). The nondiscrimination clause, asserting the right to marry "without any discrimination due to race, nationality or religion," received some opposition, because several delegations did not think it necessary to repeat the prohibition of Article 2. The insertion was proposed by the Mexican delegation. Campos Ortiz said his delegation realized this prohibition against discrimination repeated what Article 2 had already said. Nevertheless, he felt that important things should be repeated as often as necessary, which would strengthen the Declaration "immeasurably in the eyes of the common man" (p. 364). Kalinowska, the Polish delegate, supported the Mexican amendment because "the war," she said, "had shown the equality of the sexes" (p. 371). It passed with a vote of 22 to 15, with 6 abstentions, and it is the only place in the Declaration

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where some of the nondiscrimination items in the prohibition of Article 2 are repeated (p. 375). This fact itself testifies to the strength of the women's lobby and the desire of the delegates to adhere to the Charter's promise of equal rights for men and women. The addition of the nondiscrimination clause may seem innocent enough, since it simply repeated some of the items of Article 2. As we saw in Saudi Arabia's abstention in the final vote (see Chapter 1), the prohibition of discrimination on the basis of religion was a great stumbling block to delegates from largely Muslim countries. According to Muslim law Muslims may not marry someone of an other faith. Baroody, the Saudi Arabian delegate to the Third Committee, "emphasized the fact that apparently the authors of the draft declaration had for the most part taken into consideration only the standards recognized by western civilization and had ignored more ancient civilizations which were past the experimental stage, and the institutions of which, for example marriage, had proved their wisdom through centuries." 59 Cassin, the French delegate, commented on this abstention in the General Assembly. He pointed out that the wording of Article 16 had not prevented other Muslim countries such as Syria, Iran, Turkey, and Pakistan from voting for the Declaration (p. 933). For instance, Shaista Ikramullah, the delegate from Pakistan, told the Third Committee that "her delegation fully supported the adoption of the declaration because it believed in the dignity and worth of man [and because] it was imperative that the peoples of the world should recognize the existence of a code of civilized behavior which would apply not only in international relations, but also in domestic affairs" (p. 37). I have shown above that any mention of even the possibility of divorce had been consistently rejected by the Commission itself. The Third Committee was a much bigger body in that it had on it representatives of all the member states. The closeness of the vote in that larger forum-it passed on a count of 17 to 16, with 9 abstentionsreveals the intensity of the debate (p. 376). Those who were against the amendment generally argued that the Commission's phrase "equal rights as to marriage" said everything that needed to be said, without offending anyone. "Mrs. Roosevelt ... replying to the question asked by [Begtrup,] the representative of Denmark, pointed out that the Commission on Human Rights had interpreted the term marriage in its widest sense. Article [16], in its original draft, dealt with all stages of marriage, from the contract to the divorce" (p. 373). She was backed on this by Cassin, who argued that "countries which had divorce laws could not after all impose the use of the word 'divorce' in the declaration when certain national constitutions did not admit it" (p. 374). By itself, this argument does not carry much wait, since the very project of the Declaration was to bring errant constitutions in line with the moral principles it enunciated. In 1948, many constitutions did not yet admit equal suffrage, but, as we shall see below, the Declaration calls for just that. L. J. C. Beaufort, a Dutch representative, argued that the phrase "both during marriage and when divorced" suggested to the general public that the United Nations "approved of divorce on the same footing as marriage" (p. 368). Azkoul, the Lebanese delegate, elaborated on this point with the observation that "marriage was an institution, whereas divorce was merely an exceptional and regrettable aspect of that institution" (p. 372). Implicit in the Dutch/Lebanese position is the idea that marriage is more permanent than not, divorce being the exception to the rule.

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Begtrup saw the problem of equal footing that was raised and proposed the compromise phrase "equal matrimonial rights" for men and women. This excellent suggestion did not catch on and was rejected 19 to 7, with 3 abstentions, but it does express the basic idea behind the Soviet amendment (p. 376). Pavlov himself said that "the purpose of his amendment was not to encourage divorce, but to ensure the equality of husband and wife during marriage and in case of divorce." His delegation wanted to take "the human factor into account, for the refusal to grant a divorce in the case of a family crisis was tantamount to a flagrant denial of freedom" (p. 373). The crucial qualification "in case of" can also be found in the Polish position, as expounded by Kalinowska. She pointed out that her delegation was "opposed to easy divorce," but wanted to give "the man in the street ... the assurance that equality would obtain in case of divorce" (p. 376). Bernardino, the delegate from the Dominican Republic, wanted "the absolute equality between men and women as to marriage specifically expressed, for ... there were countries which had not yet granted women absolute equality from the legal point of view. The ultimate goal of Article [16] should therefore be to influence governments to revise their legislation if necessary in order to abolish any disability affecting women in connection with marriage" (p. 369). Qualifying her position with the observation that equal rights did not mean identical rights, Ikramullah of Pakistan supported the Soviet push toward equality between the sexes, partly "to ensure protection of women after divorce and the safeguarding of their property" (p. 375). The drafters treated the issue of divorce as one of nondiscrimination rather than as a basic and independent human right. It is true, of course, that much of the opposition to the explicit mention of divorce came from delegates from Christian countries and organizations. This opposition, which was based on certain religious convictions, did not in the final roll call prevent these countries from voting for the Declaration. These Christians were in the same position as the delegates from Muslim countries. Both groups objected on religious grounds to certain provisions of the marriage article. In the end, all of them-except Saudi Arabia-voted for the Declaration, in effect admitting that the question of human rights cannot be settled on religious grounds. The human rights enunciated in the Declaration are not linked to religion. The drafters did not think that in order to accept the existence of any one of the rights one had to be an adherent of a certain faith. In that context the right to divorce, though derivative, is nevertheless fundamental, in the same way that a prisoner's right to a fair hearing is. No one has to contract marriage, but once one is in that state, certain rights become operative. In the Article on marriage, the Commission had been willing to repeat some of the nondiscrimination items of Article 2, namely, race, nationality, and religion. Various delegations tried to get the same kind of repetition approved for the Article on participation in government. This made good sense, for the Commission on the Status of Women, which "sought to raise the status of women, irrespective of their nationality, race, language or religion, to equality with men in all fields of human enterprise," had decided that "democracy is now the only social order in which women can enjoy full rights as human beings" (E/38/Rev.l/p. 12). And I have already referred to the Danish motion that passed the first General Assembly urging member states to give

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women full political rights. Against this background, the article on participation in government is one of the most important ones. Again, the fight was taken up by the Commission on the Status of Women and the Soviet delegation. Begtrup pointed out to the Working Group of the Second Session "that in practice there were still in many countries qualifications of class, income and sex regulating suffrage. She would like to see the word 'equal' before the word 'election' in any statement about people's right to participate in elections" (SR.7/p. 9). "Mrs. Eden, the representative of the International Council of Women, supported this view and emphasized equality of suffrage." Roman de Romer, who represented the International Union of Catholic Women's Leagues, "stressed the solidarity of women on the matter of equality of political rights and suggested that a comment should emphasize that the word 'everyone' in the article contained no discrimination against women" (p. 9). To back up these suggestions, Stepanenko, the representative of the BSSR, proposed that "all citizens of any State, regardless of race, sex, language, religion, fortune, education, national or social origin, have the right to elect and be elected in all the organs of their governments by universal, free and general elections" (p. 9). This sweeping proposal was rejected 3 to 1, with 2 abstentions. The group adopted instead the idea that "everyone, without discrimination, has a right to take an effective part in the government of his country" (p. 11). Aside from the right to run for office and be elected, two main issues are connected with participation in one's government. The question of who should participate raises the issue of universal suffrage and led the women's lobby to argue for a nondiscrimination prohibition. And the question of how such participation should take place brought up the matter of open and free elections. In the end the question of equal suffrage rights for men and women was subsumed under the second issue having to do with the nature of the elections. In the Second Session of the Drafting Committee, Roosevelt, as representative of the United States, came with a proposal that deleted from the right of participation the phrase "without discrimination," on the grounds that it unnecessarily repeated the prohibition of Article 2 (SR.41/p. 8). The U.K. delegation made the same suggestion (p. 12). This deletion of all reference to nondiscrimination was one extreme option open to the delegates. The other extreme was an earlier Soviet proposal to add a long list of nondiscriminatory items such as "property, residence, social origin, religion, race or political beliefs," all of which could not bar a person from participation in his or her government (p. 10). Santa Cruz, the Chilean delegate, proposed a slightly different list: "everyone, without discrimination as to race, sex, language, creed or social class, possessing legal capacity" has the right to participate in the government (p. 12). Pavlov objected to the deletion of all mention of nondiscrimination as "it would allow the retention of dangerous discriminations" which some governments still openly practiced (p. 13). He was supported in this view by the French delegation. "To facilitate the discussion, the chairman and Mr. Wilson [U.K.] withdrew their respective amendments" (p. 14). The Drafting Committee approved the Chilean nondiscrimination list, but rejected the USSR proposal that the elections mentioned in the article be mandated as "universal, equal, direct, periodic, free, fair, and by secret ballot" (p. 14). These election qualifications were restored in the Third Committee. The Third Session of the Commission accepted a short U.K.-India text that de-

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leted the Chilean nondiscrimination list, leading to this simple text: "Everyone has the right to take part in the government of his country directly or through his freely chosen representatives" (E/CN.4/99/p. 5 ). Ledon, the vice-chairman of the Commission on the Status of women, objected to the deletion of the nondiscrimination items, "particularly discrimination of sex. It was unfortunate that in many countries, women did not enjoy political rights. The right to vote in particular was often withheld on the pretext of political immaturity" (SR.61/p. 16). If this was not spelled out, she wanted a note added on how the Commission interpreted the word "everyone" in this article. Wilson assured her that the term "embraced all persons, except children and the insane." The USSR delegation supported the Commission on the Status of Women, but the simple U.K.-India text passed with 11 to 4 votes, with 1 abstention (SR.62/p. 2). The election qualifications that had been dropped in the Second Session of the Drafting Committee were restored when the Third Committee adopted a Chinese text that was very close to the final product.60 This Chinese version had the qualification "equal" attached to suffrage, thus implying the acceptance of what Jimenez de Arechaga, the representative from Uruguay, called the "principle of the absolute equality of the political rights of men and women" (p. 465 ). This is yet an other place where the Charter's goal of political equality for women influenced, by way of the women's lobby, the wording of the Declaration. This is so, even though women are not mentioned explicitly. The same thing is true of the repetition of the discrimination prohibition in the second paragraph of Article 23: "Everyone, without any discrimination, has the right to equal pay for equal work." The phrase "without any discrimination" is a compromise text that was accepted when discord arose in the women's camp. The Second Session of the Commission had adopted the following: "women shall work with the same advantages as men and receive equal pay for equal work." 61 In the Third Session discord arose when Janet Rob, the representative of the Liaison Committee of the International Women's Organizations, "speaking on behalf of 14 feminine organizations requested the deletion" of the paragraph. She thought that it "could lead to misunderstanding and was an unnecessary limitation on the word 'everyone' that was used in the first paragraph of the article" (SR.64/p. 5). But Ledon of the Commission on the Status of Women wanted to see the paragraph retained. The issue was an acute one, for the U.K. and Indian delegations had submitted a joint text which omitted the equal pay for equal work paragraph (99/p. 6). And the brevity of that text was appealing to many delegates. Even Metha, the Indian representative, "did not think it necessary to use the words 'and women' since 'everyone' was all inclusive" (SR.64/p. 10). Lebeau, the Belgian delegate, liked the U.K.-Indian draft because "the principle of equality between the sexes had been stated many times in the Declaration and therefore, it was unnecessary to mention it again" (p. 13). In contrast, Pavlov, the Soviet delegate, thought it crucial to keep the women's clause in, for "it could not be left to the discretion of the employer who was only too ready to hire cheap labor when he could. It was necessary therefore to guarantee the right explicitly" (SR.66/p. 5). A subcommittee was appointed, which proposed that "women shall work with the same advantages as men and receive equal pay for equal work" (E/CN.4/114). Metha, who had been part of that group, said that only two members had wanted this provision and that she herself felt that to make "specific reference to

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women in the article would give rise to the impression that women did not have the same rights in other matters where they were not specifically mentioned." Stepanenko, the representative of the BSSR, "expressed his astonishment that the representative of India, herself a woman, was opposed to [the paragraph] 4. Theimportance of such a provision was paramount, in view of the fact that women had been discriminated against in the matter of pay almost more than in any other. Moreover, the Commission on the Status Women had adopted a resolution, requesting that the Declaration contain a provision about equal pay for equal work. This provision had been adopted in the text of the Second Session of the Commission and in the text of the Drafting Committee, and it was not right to ask for its exclusion now" (SR.66/p. 6 ). Whereupon Wilson "declared that, in spite of the arguments of the BSSR representative, he would be guided by the views of the two women members [Roosevelt and Metha] of the Commission" (p. 6). Metha "reiterated her conviction that any specific mention of women in the article would only weaken the position of women; there were many other fields in which there was discrimination against women, but nowhere else did the Declaration make specific mention of women, it being understood that 'everyone' included women" (p. 7). Ledon, "on behalf of her Commission [on the Status of Women], which represented all the women of the world, urged the adoption of the paragraph." She appealed to "the sense of justice of the members on the Commission, urging them to support that paragraph in order to improve the position of women throughout the world." Cassin said he did not worry about the overlap with Article 2, for he "considered it more important to defend women than to defend words" (pp. 7-8). Pavlov proposed to broaden and change the paragraph to read "everyone, regardless of race, nationality, or sex." That, he said, "would cover discrimination against women and also discrimination against coloured workers as compared to white, colonial workers as compared to those of Metropolitan powers" (p. 9). This reference to the colonies did not sit well with the British representative who objected to such broadening of the discussion. The Commission adopted a Chilean proposal, which read "Everyone is entitled to receive equal pay for equal work," with a vote of 10 to 3, with 4 abstentions. Any mention of discrimination was turned down, including a specific reference to women. The issue was taken up again by the Soviet delegation in the Third Committee. Its amendment "everyone, without distinction as to race, nationality, or sex has the right to equal pay for equal work" was adopted, but the whole text of the article-which included the other paragraphs as well-was rejected, leaving the matter unresolved (p. 92). As a way out of the impasse, the United States delegation proposed to replace the itemized Soviet list with the general phrase "without discrimination." Upon the suggestion of the Belgian delegation, the word "any" was added to that phrase, which brings us to the final text (p. 97). The general phrase "without any discrimination" repeats the nondiscrimination prohibition of Article 2, but the impetus for its inclusion came from the women's lobby, suggesting that whatever else the article says, the Declaration must be interpreted as supporting a woman's right to equal pay for equal work. We have seen that Article 2's nondiscrimination list ("race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status") is a deliberate expansion of the Charter's mandate that the new world organi-

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zation promote human rights for all without discrimination based on "race, sex, language or religion," and that in the case of sex discrimination there existed a women's lobby that kept most sexist references out of the final product. With the exception of the terms "political" and "language," discussed in sections 4 and 3 respectively, the disagreements about the items on Article 2's list were minor ones. All of the drafters believed that the principle of nondiscrimination, as expounded in this chapter and when combined with exegesis of Article 7 given in sections 2.2 and 2.4, was the gateway to the universality of the human rights proclaimed in the Declaration. In section 6.5 I explain that the drafters had very few substantive drafting principles and that they let their text grow organically from one drafting stage to the next. Their prohibition of discrimination is an exception to this practice. Primarily-though by no means exclusively-as a result of Communist insistence the drafters adopted this prohibition as a drafting principle that came to deeply affect the meaning and scope of every article they wrote. This principle is reflected in the repeated use of the words "all," "everyone," and "no one": "all people and all nations" (Preamble), ''All human beings" (Article 1), "Everyone" (2), "Everyone" (3), "No one" (4), "No one" (5), "Everyone" (6), ''All" (7), "Everyone" (8), "No one" (9), "Everyone" (10, "Everyone" and "No one" (11), "No one" (12), "Everyone" (13), "Everyone" (14), "Everyone" (15), ''All men and women" (16), "Everyone" (17), "No one" (18), "Everyone" (19), "Everyone" and "No one" (20), "Everyone" (21), "Everyone" (22), "Everyone" (23), "Everyone" (24), "Everyone" (25), "Everyone" (26), "Everyone" (27), "Everyone" (28), "Everyone" (29), and "In no case" and "Nothing" (30). This litany of universal terms reflects the drafters' conviction that there are no exceptions to the possession of human rights. All members of the human family possess them simply by virtue of that membership.

Notes 1. Chapter 1, article 1, par. 3; chapter 2, article 8 and article 13, par. lb; chapter 12, article 76, par. c. 2. For the document, see E/CN.4/52/p. 4; for the vote, see E/CN.4/AC.2/SR.9/p. 11. 3. E/CN.4/AC.l/SR.6/p. 3. He was right on both counts. The South African constitution had placed "matters specifically or essentially affecting Asiatics throughout the Union" outside normal governmental channels and placed control and administration of them "in the Governor General Council" (E/CN.4/Sub.2/4/p. 44). Section 3.5 of this study supports Koretsky's claim regarding the rights of women. 4. To Secure These Rights: The Report of the President's Committee on Civil Rights (Washington, D.C.: U.S. Government Printing Office, 1947), viii. 5. To Secure These Rights, 23. The report states that in 1946 six people in the United States were lynched by mobs, "three of them had not been charged, either by the police or anyone else, with an offense. Of the three that had been charged, one had been accused of stealing a saddle. (The real thieves were discovered after the lynching.) Another was said to have broken into a house. A third was charged with stabbing a man. All were Negroes." In the decade of 1936-1946 there were at least forty-three lynchings and a conservative estimate shows that "226 persons were rescued from threatened lynching. Over 200 of these were Negroes" (23). 6. E/CN.4/AC.l/SR.29/p. 4. The speech in the Third Session can be found at E/CN.4/ SR.49/p. 9. 7. E/CN.4/SR.5/p. 6. After Roosevelt made the comment on style I mention here, Pavlov immediately "objected to that ruling as incorrect." So did Stepanenko, his colleague from the BSSR. The chair nevertheless ruled as she said she would, whereupon Hood "declared that in

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the circumstances he was willing to withdraw his amendment" (pp. 6-9). 8. Tore Lindholm, "Prospects for Research on the Cultural Legitimacy of Human Rights The Cases of Liberalism and Marxism," in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, ed. Abdullahi Ahmed An-Na'im., ed. (Philadelphia: University of Pennsylvania Press, 1991), 400. 9. V. I. Lenin, Imperialism: The Highest Stage of Capitalism (New York: International Publishers, 1939), chart on p. 80. 10. Philippe De La Chapelle, La Declaration universelle des droits de l'homme et le Catholicisme, Bibliotheque Constitutionnelle et de Science Politique, tome 29 (Paris: Librarie General de Droit et le Jurisprudence R. Pichon et R. Durand-Auzias, Soufflot, 1967) 44. 11. Egypt, Ethiopia, Union of South Africa, and Liberia. 12. Harry Magdoff, Imperialism: From the Colonial Age to the Present (New York: Monthly Review Press, 1978), 72. 13. Pollis and Schwab, Human Rights, 4. 14. Pollis and Schwab, Human Rights. They see the values enshrined in the Declaration as "only one particular value system," which had "prior existence in Western Europe and the U.S." (7). These values are basically "democratic and libertarian, based on the notion of atomized individuals possessed of inalienable rights in nature," all of which gives the document for the rest of the globe an unacceptably "strong Western bias" (17). Hence the predictions of limited applicability. However, the Declaration grew out of the seven human rights references in the United Nations Charter (see 1.1). When new nations join the UN they must sign that Charter, which means that at that point they commit themselves at least morally to uphold and respect the human rights enunciated in the Declaration, which is a clear child of the Charter. 15. As quoted by Yano Tom in "Who Set the Stage for the Cold War in Asia?" in The Origins of the Cold War in Asia, ed. Yonosuke Nagai and Akira Iriye (New York: Columbia University Press, 1977), 333. This new anti-imperialist line of attack on the capitalist countries was an application of what Lenin had said about the colonies in his Imperialism: The Highest Stage of Capitalism. In that pamphlet Lenin had defined imperialism as "monopoly capitalism" and had openly worried about the "final partition of the globe ... in the sense that the colonial policy of the capitalist countries has completed the seizure of the unoccupied territories on our planet" (76). 16. Article 73 (c) says that they have "to take due account of the political aspirations of the peoples and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement." Article 76(b) makes the same point with respect to the trust territories and tells the "host" countries to "promote the political, economic, social and educational advancement of the inhabitants of the trust territories and their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples." As the reader might guess, the phrases "particular circumstances" and "varying stages" figured heavily in the answer the metropolitan powers gave to this Communist challenge. 17. This was proposed by Cassin, but objected to by the chairperson, Roosevelt, for the reasons stated in the text (E/CN.4/AC.2/SR.7/p. 8). 18. "The General Assembly recommends to all member states the ... dissemination of the provisions of this Declaration throughout the populations of the States Members themselves, of territories over which such States are performing the functions of the administering authority, of territories under trusteeship and of non-self-governing territories" (E/CN.4/139). 19. Against: Australia, Belgium, Canada, Chile, China, Costa Rica, Dominican Republic, France, Honduras, Netherlands, Paraguay, Sweden, United Kingdom, United States. Abstained: Argentina, Brazil, Denmark, Ecuador, Greece, Uruguay, Venezuela. See Third, at 746. 20. Third, p. 741. The other nations that voted for the separate article were Pakistan, Peru, Poland, Saudi Arabia, Syria, UKSSR, USSR, Yemen, Yugoslavia, BSSR, Czechoslovakia, Ethiopia, Haiti, India, Iran. 21. These nations (the U.K., France, Australia, Belgium, and New Zealand) were asked to fill out a very detailed questionnaire that sought to ascertain if they were fulfilling the mandate

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set forth in the Charter of the UN (E/CN.4/46/pp. 40-60). 22. A/778/C/Rev.l. The only other delegation to propose substantive changes at this last stage was the USSR (A/784 and Third, at 863). 23. Third, p. 909. He said this was "sufficiently evident from the reports submitted to Trustee Council by the Non-Self-Governing Territories, each page of which showed that oppression, slavery, and exploitation of labor, to a hitherto unknown degree, were the characteristics of colonial administration." 24. General Assembly, Third Session, 183d Plenary Meeting, p. 932. This fits the vote taken four days earlier in the Third Committee when the U.K. got 25 votes in favor, 14 against, and 6 abstaining from its attempt to have the separate article reconsidered (Third, at 863). 25. A/C.3/307/Rev.l/Add.l. 26. E/CN.4/Sub.2/43/p. 7. They were abolished when the Control Council that was set up to govern Germany included in its very first law the provision that "no German enactment, however or wherever enacted shall be applied judicially or administratively in any instance where such an application would cause injustice or inequality." It then barred discrimination for "reason of race, nationality, religious beliefs, or opposition to the National Socialist German Labor Party or its doctrines," which the Council declared illegal one month later (E/CN.4/Sub.2/4/p. 16). 27. So argues the anthropologist Ruth Benedict in the booklet Race: Science and Politics (New York: Viking Press, 1945), which was directly aimed at discrediting Hitler's theories about race. Argued Benedict: "In whatever sense 'Aryan' is used, it is a language term and has no reference to a peculiar German racial heritage" (11). Even so, within that larger language grouping "the people speaking ludo-European languages have no unity of racial type either in skin or hair color, in cephalic index or in stature" (11). 28. E/CN.4/Sub.2/SR.5/p. 6. The item "political or other opinion" was added over Borisov's objections and I discuss its adoption in the next section. 29. E/CN.4/Sub.2/SR.6/p. 10. Perhaps because he was encouraged by Borisov's agreement with his explanation of what "national origin" meant, Wu suggested that the word "national" be replaced by "ethnic." This suggestion led to another round of discussions, but the note saying that the item "national origin" should be interpreted as a reference to "national characteristics" and not to the matter of "citizenship" reflected discussions held in the Sub-Commission. 30. E/CN.4/AC.2/SR.3/p. 11. The reference to Article 36 was not an unreasonable one, since at this time it was not yet known that later in its discussions this same Working Group would not be voting on Article 36, but would simply pass it on informally. As it was, Stepanenko "pointed out that Article 36 dealt with language in relation to national minority groups, not to non-self-governing countries," that is, the colonies, which should also be covered (p. 11). For the drafting story of Article 36, see 7.4. 31. E/CN.4/SR.36/p. 8. Lord Dukeston, the delegate from the U.K., pointed out that it "was not possible to provide that everyone should understand that procedure, but only to provide that the procedure should be explained to him in a manner which he understands." Dehousse, the Belgian representative, suggested that a phrase from the covenant be adopted, entitling the defendant to a "fair hearing of his case and the aid of a qualified representative of his own choice (p. 9). 32. E/CN.4/AC.1/32 and E/CN.4/AC.l/SR.30/p. 10. 33. For the U.K.-India text, see E/CN.4/95/p. 2; for the Chinese text, E/CN.4/102; and for the French one, E/CN.4/82.Add.8/p. 3. 34. "Should the accused be unfamiliar with the national language, he must be enabled to acquaint himself with all the details of the case by means of an interpreter and he must be given the right to speak in court in his native language" (E/800/p. 32 and A/C.3/277). 35. Third, p. 260. Later on Cassin, the main French delegate, claimed that "the French had supported the USSR amendment on the use of the national language in courts of law" ( Third, 587). As we can see here this support came too late to be effective. 36. E/CN.4/AC.1/3/Add.l/p. 360. 37. E/CN.4/AC.1/3/Add.l/pp. 362, 367, and 373.

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38. E/CN.4/AC.l/3/Add.l/p. 379. 39. Article 6 of Cassin's second revision read: "Everyone is entitled to the rights and freedoms hereunder declared, without distinction as to race, sex, language, religion, or political belief" (E/CN.4/AC.l/SR.12/p. 5). 40. E/CN.4/Sub.2/4/p. 45. For similar lists in the constitutions of the BSSR, the l.Jl(SSR, see pp. 7 and 42 of the same document. 41. E/CN.4/AC.l/3/Add.l/Article 7/p. 362. 42. E/CN.4/Sub.2/21. The use of the phrase "political life" in the first half is voided by the omission of "political opinion" in the nondiscrimination list of the second half. For the precedents in Communist constitutions, see Articles 123 and 135 at E/CN.4/Sub.2/4/p. 45. 43. E/CN.4/Sub.2/SR.5/p. 4. Upon the suggestion of Daniels, the American expert on the Sub-Commission, the word "all" was inserted here (5). The replacement of "as to" by "such as" was made upon the prodding of Daniels and the suggestion of Masani, the expert from India (SR.6/p. 15). 44. As was to be expected, the overlap between "property status" and "social origin" did not go unnoticed. At one point, Monroe, the British expert, and Spanien, the French expert, proposed a joint amendment, which omitted the words "national" and "social" and substituted the phrase "property status, origin or class" (E/CN.4/Sub.2/SR.5/p. 8). When Borisov objected to the alterations, Monroe explained to him that "class" had been proposed "as a clearer version of "or social origin" and that the word "national" was liable to being confused with "nationality" (p. 9). Upon reflection, Borisov agreed that "class" could be substituted for "social origin," but others were not so sure. The joint Monroe-Spanien amendment "property status, origin or class" was rejected by 7 votes to 3 with 1 abstention (p. 8). 45. I live in New Jersey, where the schools are paid for with the taxes raised from property owners in the district. Since property values differ widely from the affluent to the poorer districts, so does the education the children receive. All over the U.S. there is a tremendous gap in the quality of education between the inner cities and in the suburbs. 46. Third, p. 139. We should probably trace the Indian reluctance regarding the word "birth" to the Hindu doctrine of reincarnation. The word "caste" as the sociopolitical shadow of that doctrine was more acceptable, as we can see in the case of Gandhi's spiritualizing and internalizing of the idea of castes. For this interpretation of Gandhi's philosophy and the Hindu reformers for which he spoke, see John B. Carman "Duties and Rights in Hindu Society" in Human Rights and the World's Religions, ed. Leroy S. Rouner (Notre Dame, Ind.: University of Notre Dame Press, 1988), 113-128. 47. Third, p. 139. Probably because he saw that there had been more support for his word "class" than he had expected, Pavlov now proposed an amendment to add the word "estate" after the word "birth." This new proposal by Pavlov was rejected by 28 votes to 7, with 8 abstentions. 48. Third, p. 853. This is what was officially adopted, and I do not know when and how the word "any," which is not in the final product, was deleted. 49. Chapter 3, Article 7, paragraph 2. 50. E/38/Rev.l/App. 1/p. 14. 51. Humphrey, Great Adventure, 19. Writes Humphrey: "I cannot say that I was always at ease with the commission. Many of its members resented the fact that the section of the Status of Women was part of the Division of Human Rights with a man as its director, and I was sometimes made to feel that my presence was not welcome." Humphrey "found the chairman somewhat formidable and unbending" (31). This stubbornness on the part of Begtrup shows clearly in the lobbying efforts of her Commission on the Status of Women. It is my suspicion that Begtrup and Roosevelt were not kindly disposed toward each other, which made Roosevelt denser than she otherwise might have been on issues of sexist language. 52. E/437/Res.46/f, E/281/Rev.l/p. 10 and E/CN.4/SR.23/p. 23. 53. Humphrey, Great Adventure, 30 and 31. An example of this can be found in the comments by Pavlov to the Third Committee. He observed that although the equality of men and women was stated in the U.K. and U.S. constitutions, "it had in reality not been applied. Thus of

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the 640 members of the British Parliament only 24 were women, and only 9 women were members of the United States Congress. The Supreme Council of the USSR included 277 women, a much higher proportion than that found in any other parliament in the world" (132). 54. Some critics nevertheless think that the document is tainted by sexism. Adamantia Pollis has argued that the Declaration is informed by "the notion of man as an autonomous, rational, calculating being ... a notion of man but not of woman and not even of all men but only of some." See her "Liberal, Socialist, and Third World Perspectives of Human Rights," in Toward A Human Rights Framework, ed. Peter Schwab and Adamantia Pollis (New York: Praeger, 1982), 7. Robert J. Nelson has spoken of the "quasi-religious belief for promoting what the United Nations-in pre-feminist years-styled a 'spirit of brotherhood' among all human beings." See his "Human Rights in Creation and Redemption: A Protestant View" in Human Rights in Religious Traditions, ed. Arlene Swidler (New York: Pilgrim Press, 1982), 10. 55. See the reports of the First Session of the Drafting Committee (E/CN.4/21/Annex F/p. 73), of the Second Session of the Commission (E/600/Annex A/p. 15), and of the Second Session of the Drafting Committee (E/CN.4/95/Annex A/p. 5). This means the change did not occur until the Third Session of the Commission. 56. E/CN.4/95 and E/CN.482/Add.8/p. 2. 57. Eli Zaretsky, Capitalism, the Family, and Personal Life (New York: Harper & Row, Perennial Edition, 1986), 48. 58. E/CN.4/AC.2/SR.6/p. 7. With votes of 4 to 0, with 2 abstentions, and of 3 to 1, with 2 abstentions. The U.K. delegation succeeded in adding the comment that "married persons should have the right to reside together in any country from which they could not lawfully be expelled" (p. 7). 59. Third, p. 370.Just before this he had made the enigmatic remark that just because the "Declaration was frequently at variance with the patterns of culture of Eastern states, that did not mean, however, that the declaration went counter to the latter, even if it did not conform to them" (370). 60. With respect to the nature of the election, Cassin at one point argued that the absence of secret balloting did not mean the procedure was not democratic "since in certain cantons of democratic Switzerland ... elections were not held by secret ballot" ( Third, p. 450). Demchenko, the UKSSR delegate, was quick to counter "the French representative's description of Switzerland as a model of a democratic State by pointing out that in Switzerland women did not enjoy the franchise" (461). 61. E/CN.4/SR.40/p. 8. Several governments commented on this proposed draft. The Dutch did not want the paragraph to interfere with their system of family allowances, the South African government wanted to delete the whole idea, while the Australian government wanted the paragraph phrased in terms of women having "the right" to equal pay for equal work (E/CN.4/85/p. 40).

[7] The Racial Convention Michael Banton

LI KE Plato's Republic, the Convention is founded upon a noble lie. Plato maintained that it would be easier for the guardians to rule his ideal republic if the citizens believed they had different capacities. He recalled a myth that, when God made men, into some he put gold to make them capable of ruling; into the auxiliaries he put silver; into the farmers and craftsmen, iron and copper. If the citizens believed their abilities to be predetermined, this would lower their aspirations and there would be less discontent. Some English versions of The Republic have translated a reference to the use of this myth as a noble lie. The International Convention is founded upon the lie that racial discrimination, as defined in ICERD article 1.1, can be eliminated. There is no question that it can be reduced, and maybe if it was defined in some other way it could be eliminated, but to aim for the elimination of the conduct defined in article 1.1 is another matter. The belief that racial discrimination could be eliminated was a nobler lie than Plato's, because it mobilized governments in pursuit of a higher objective and because without it they would never have committed themselves as they did. In retrospect, the decision taken in the General Assembly on 21 December 1965 was an astonishing event. Many of the states voting in favour subsequently ratified the Convention but failed to keep their promises to submit reports and to pay their share of the expenses. Many of those which have kept these promises have nevertheless failed to fulfil all their obligations to legislate and have sometimes disputed the nature of these obligations. If they were so half-hearted, how did they come to be swept into the steady movement of accession? How did the General Assembly come to accept that, by action of the kind proposed, racial discrimination could be eliminated? These are complicated questions which are best considered chronologically, so far as this is possible.

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PRELIMINARY STEPS To begin with, it should be noted that the word 'discrimination' was not used in the UN Charter or in the Universal Declaration of Human Rights. So the Secretary-General's memorandum on The Main Types and Causes of Discrimination of 1949 had to explain a concept that was still unfamiliar to most readers. It began with the view of the Sub-Commission on Prevention of Discrimination and Protection of Minorities: 'Prevention of discrimination is the prevention of any action which denies to individuals or groups of people equality of treatment which they may wish.' It maintained that the prevention of discrimination must be based on two guiding principles (individual freedom, and equality of all human beings before the law) and on knowledge of actual social conditions. That knowledge must be based on sociological analyses of the facts involving discrimination, their causes, how they function, and their effects. From such analyses it should be possible to ascertain: (a) those discriminatory practices which may be directly prevented by legal action; (b) those practices which may be curtailed or restricted by administrative actions; and (c) those practices which, although harmful, cannot be effectively controlled except through long-term educational programmes. (para. 16)

The memorandum went on to distinguish moral and juridical equality from material equality, acknowledging that industriousness deserved reward, but moral and juridical equality excluded any differentiation on such grounds as colour, race, sex, language, and so on. It continued: Discriminatory practices are those detrimental distinctions which do not take account of the particular characteristics of an individual as such, but take into account only collective qualifications deriving from his membership in a certain social or other group ... Thus, discrimination might be defined as a detrimental distinction based on grounds which may not be attributed to the individual and which have no justified consequences in social, political, or legal relations (colour, race, sex, etc.), or on grounds of membership in social categories (cultural, language, religious, political or other opinion, national circle, social origin, social class, property, birth, or other status). Acts of discrimination assume three forms: (a) Inequality in treatment which takes the form of 1mposmg disabilities;

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(b) Inequality in treatment which takes the form of granting privileges; and (c) Inequality of treatment which takes the form of imposing odious obligations. (paras. 87-9)

It discussed public discrimination in the form of disabilities, privileges, and the imposition of duties, before listing forms of discrimination by private persons. Possible legal measures and educational principles for the prevention of discrimination were then reviewed. The key concept in this early formulation came to be called that of grounds. One man may treat another differently because he believes him to be of a particular race. That is discriminatory, whether or not the other man actually belongs to the race in question. If Jones were persuaded by Smith that there was a race of Danireans who represented a threat to their interests, and that Robinson was a Danirean, and if, as a result, Jones treated Robinson less favourably, that would be discrimination even though there is no race of Danireans. This way of defining racial discrimination made possible a solution to what was otherwise an intractable problem. Racial discrimination was thought to be based on an erroneous nineteenth-century doctrine that every human belonged in some racial category, membership of which exercised a determining influence upon his or her abilities and social position. Any method of combating discrimination which made use of a racial classification would legitimize a view of human differences that had been used to justify the denial of human rights. By defining discrimination as action on the grounds of race, sex, language, and religion (distinctions which the UN Charter declared incompatible with its objective of promoting respect for human rights and fundamental freedoms), it was possible to bypass any arguments about the nature of these differences in themselves. However, if discrimination was to be detrimental by its very definition, then it would be necessary to consider the possibility of making exceptions, so that certain sorts of action with a laudable purpose might be excluded from its scope (on this, see Banton 1994). Within the system of international institutions the first definition of racial discrimination was that adopted by the ILO for its Discrimination (Employment and Occupation) Convention (No. 111) of 1958. Discrimination was said to include 'any distinction, exclusion or preference made on the basis of race, colour, sex,

193

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religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation'. The Convention against Discrimination in Education, adopted by the General Conference of UNESCO in 1960, contained a very similar definition but extended it to cover any distinction, etc., which had the purpose or effect of nullifying ... etc. As was mentioned in the previous chapter, the Sub-Commission on Prevention of Discrimination and Protection of Minorities happened to be in session in January 1960 at the time of the attacks on synagogues and Jewish burial grounds in what was then West Germany, and which were copied in some other countries. The Sub-Commission adopted a resolution to say that it was deeply concerned by the manifestations of anti-Semitism and other forms of racial and national hatred and religious and racial prejudices of a similar nature, which have occurred in various countries, reminiscent of the crimes and outrages committed by the Nazis prior to and during the Second World War.

It will be argued later in this chapter that the decision of the SubCommission to describe the attacks as manifestations of prejudice was to use an approach different from, and inconsistent with, the approach used in the ILO Convention. To describe them as manifestations was to liken them to a sickness, whereas the ILO approach was to declare acts of discrimination unlawful and to liken them to crimes. The description of racial attacks as manifestations or forms of some unobservable force or condition of society exemplifies what Sir Karl Popper called 'the spell of Plato'. If observable behaviour is the outward form of some inward condition, how can one be certain about the nature of that condition? In medicine there are objective techniques for defining such conditions. To liken societies to social organisms and apply to them medical metaphors can be dangerous when there are no comparable techniques for identifying social pathologies. The 1975 General Assembly resolution that 'Zionism is a form of racism and racial discrimination' is an example of what is at stake. Whether or not Zionism is a form of racism depends upon the way in which the two terms are defined, and they have both been seen in highly political ways. To argue that something is a form of something else is quite different from a decision that, if someone acts in a

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particular way, he is to be punished. It is unusual for anyone to talk of the 'forms' of crime, because actions are defined as criminal by the statement of their prohibition or of the penalty they may evoke. The 'forms' of burglary may be the differentiation of the burglary of a dwelling-house from the burglary of commercial premises, the burglary of a dwelling-house at night when someone is likely to be asleep there from the burglary of an empty house during the daytime, and so on. The Sub-Commission condemned the manifestations in question as violations of human rights. Among other things, it urged that the UN Secretary-General assemble more information about these manifestations, about counter-measures, and the views of states concerning their 'deep-lying causes and motivations'. Since its recommendations were well received, the Sub-Commission was in a position in the following year to recommend the preparation of an international convention against religious and racial discrimination, which would impose specific legal obligations on the states that chose to accede to it. In the General Assembly a number of African states, later joined by others, argued for a convention against racial discrimination. Some delegations favoured the preparation of a declaration instead. Though some states wished the action to be directed against both religious and racial discrimination, the Third Committee (which deals with Social, Humanitarian, and Cultural matters) in November 1962 eventually decided in favour of a declaration on racial discrimination to be followed by a convention, and then a separate declaration and convention on religious discrimination. Opposition to combining the two came from some of the Arab delegations and reflected the Arab-Israeli conflict. Many delegations, particularly those from Eastern Europe, considered questions of religion to be less urgent than those of race. On the agenda of the Third Committee was an item entitled 'Manifestations of Racial Prejudice and National and Religious Intolerance'. A resolution was submitted by a group of francophone West African states (Central African Republic, Chad, Dahomey, Guinea, Ivory Coast, Mali, Mauretania, and Upper Volta) calling for 'the preparation of an International Convention on the Elimination of All Forms of Racial Discrimination'. There is nothing in the records of the committee to suggest that this proposal on the crucial question of a name for the convention gave

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rise to any controversy. There were no alternative proposals. At this stage the proponents were asking for improved educational measures, the repeal of discriminatory laws, the adoption where necessary of legislation against discrimination, and action to discourage the dissemination of prejudice and intolerance. This can be seen from the text of the draft resolution it recommended to the General Assembly. It read: The General Assembly ... 1. Invites the Governments of all States . . . to continue to make sustained efforts to educate public opinion with a view to the eradication of racial prejudice ... 2. Calls upon the Governments of all States to take all necessary steps to rescind discriminatory laws ... to adopt legislation if necessary for prohibiting such discrimination if necessary ... 3. Recommends to the Governments of all States to discourage actively, through education and all information media, the creation, propagation and dissemination of such prejudice and intolerance in any form whatever ...

The first fruit of the Assembly's acceptance of this recommendation was the adoption, in 1963, of a Declaration on the Elimination of All Forms of Racial Discrimination which, in its fourth preambular paragraph, referred to the Declaration on the Granting of Independence to Colonial Countries and Peoples and the necessity to bring colonialism to a speedy end; it then noted that any doctrine of racial differentiation or superiority was scientifically false, morally condemnable, and socially dangerous. In its first substantive paragraph it described racial discrimination as an offence to human dignity and an obstacle to friendly relations between peoples, but did not define it. There followed a list of prescriptions about what states and UN bodies should and should not do. As a strategy for combating racial discrimination, it was state-centred, with little concern for the private sector. This Declaration provided guidance to the Sub-Commission, which, in the following year, set about drafting a convention. For this purpose the members had before them the texts of the earlier conventions, the General Assembly declaration, and proposals submitted by six governments. Some members were not satisfied with the Declaration and argued that any convention should represent 'a further progress' while others held that they should not try to impose upon states obligations greater than those arising

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out of the principles proclaimed in the Declaration. The summary record (EJCN.4/873, para. 29) continues: Certain members urged that the question of the elimination of racial discrimination should be examined in the context of recent historical developments and, in particular, in the light of the emergence of new States from colonialism and the struggle of various groups for equality and dignity. They felt that the convention should recognize the intimate relationship between manifestations of colonialism, which continue to affect millions of people, and racial discrimination. They expressed the hope that the convention would become an effective and practical instrument for eradicating fascism and racism as well as racial discrimination. Other members pointed out that manifestations of racial hatred and discrimination had not always been linked, in the past, to the existence of colonial territories.

This summary suggests, and in this it would be in line with other evidence, that there were three main positions. The Western states had been forced on the defensive by the pressure for decolonization which brought the Soviet group into alliance with the Afro-Asian group at the UN and gave them a big majority when it came to voting. The Western countries have long seen human rights as individual rights which could be exercised against the state. Those who spoke for the Soviet position maintained that in the West these rights were in practice enjoyed by only a minority and in the colonies by just a small elite. Political action was needed to create a just state. It was then the state which conferred rights upon citizens. The desires of individuals could not constitute a good starting-point because they had been conditioned by the societies in which they had been brought up. States came first. Politicians and diplomats from newly independent ex-colonial states could sympathize with the Soviet outlook. They were trying to hold together fissiparous societies and build up popular legitimacy for new forms of rule. Two campaigns on which the East European and African groups could unite, and to which, as individuals, many were genuinely committed, were the criticism of the continuing influence of the former colonial powers and the attack on the policies of southern African governments. Such differences in the interests of states seeking political advantage in the negotiations at the UN, and in their view of the world, were bound to generate conflicts between their views of what a convention against racial discrimination should look like.

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These differences could be reflected both in the preambular paragraphs introducing a convention, and in its substantive sections. Preambular paragraphs set out the rationale for the whole document, and they can be important in interpreting later articles when questions arise about their application. Differences in views about the use of law and of political approach were indeed soon evident. The Sub-Commission member from the UK proposed a very brief set of preambular paragraphs totalling no more than forty-nine words, whereas the members from the USSR and Poland proposed four paragraphs which recalled the 1960 Declaration on decolonization and that part of the 1963 Declaration which referred to the falsity of racial doctrines. By the time the Convention was finally adopted this preambular section had grown to twelve paragraphs. The Sub-Commission's draft was eventually elaborated and extended in several respects, but it is notable that the crucial question of how to define racial discrimination was answered quickly and that the definition was subject to very little subsequent modification. The chosen definition was based closely on that which featured in the ILO and UNESCO Conventions. These definitions, like that in the Secretary-General's memorandum of 1949, were capable of application to interpersonal behaviour and differed from the Sub-Commission's concern with the manifestations of racial and national hatred. A feature that deserves particular emphasis is that the chosen definition represented racial discrimination as resembling criminal behaviour rather than as the manifestation of some underlying sickness. It seems as if no one remarked on this during the drafting stage, though the difference is vital: people are held individually responsible for criminal behaviour but rarely for falling sick. Yet when, in the General Assembly debate, speakers referred to the forms of racial discrimination, very many seem to have envisaged something that resembled a sickness. The draft convention as proposed by the Sub-Commission, and modified somewhat in the Commission on Human Rights, came before the General Assembly's Third Committee in 1965. Some additional proposals from governments and papers from the UN Secretary-General accompanied the text, which was debated in that committee almost continuously from 11 October to 15 December before going to the General Assembly's plenary meetings on 20-1 December.

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Many of the speakers in the General Assembly debates spoke about racial discrimination as they knew it, rather than about racial discrimination as defined in article 1. All the participants thought they knew what racial discrimination was, though they had different things in mind. Many proclaimed their peoples' abhorrence of racial discrimination, or declared that it was not practised in their countries, or recalled how their peoples had suffered from racial discrimination at the hands of others. Underlying the positions taken in that discussion were differing conceptions of the nature of racial discrimination itself. The representative of the USSR had the most comprehensive and coherent conception. For him, racial discrimination was a 'revolting and monstrous anachronism' and a 'shameful aberration'. He remarked that 'So long as the economic and social conditions that gave rise to racism persisted in certain States, manifestations of racial discrimination were only to be expected.' The preparation of the Convention was 'an aspect of the struggle conducted by the peoples within the United Nations against the colonial regimes ... In any event, colonialism, and its corollary, racism, were destined to disappear as a consequence of an unavoidable process.' The Soviet Union 'would have no difficulty in ratifying the Convention because, since 1917, it had eliminated all forms of subjection, imperialism and colonialism'. Some other speakers placed more emphasis upon the dissemination of erroneous beliefs; for example, the Chilean representative observed that 'racial discrimination was a very ancient phenomenon, the survival of which was due to the perpetuation of the false doctrine that certain races were superior to others'. The Cameroonian representative maintained that 'ideas and doctrines of that nature had fostered the emergence of apartheid policies'. Statements such as 'colonialism is the most terrible form of racial discrimination' (from the Sudanese representative) and 'the most serious forms of racial discrimination are connected with colonialism' (from Mauretania's representative) passed unchallenged. The nature of the alleged connection was not clarified, other than by the Tanzanian representative, who declared that 'colonialism ... was based on the idea of national and racial superiority and it therefore necessarily entailed discrimination'. A delegate from the

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United Arab Republic averred that 'To the Arabs, Zionism was synonymous with racial discrimination and nazism ... colonialism was responsible for all the cases of discrimination he had mentioned, except that of the United States.' The Western delegations were ill prepared to counter these thrusts. They denied the implication that racism and colonialism were in some way associated. Speaking for the UK, Lady Gaitskill maintained that racial discrimination was an extremely complex problem and doubted whether legislation alone was a sufficient response: 'using legislation by itself was like cutting down a noxious weed above the ground and leaving the roots intact.' She said that, unlike other representatives, she did not deny that there was racial discrimination in her country, where it had been aggravated by a large influx of new immigrants. The British press made no attempt to hide that fact. Other delegates were more concerned about discrimination in the colonies than in Britain, and when, in the Third Committee, amendments were proposed that would enable the inhabitants of Trust and Non-Self-Governing Territories to petition the UN concerning racial discrimination by administering powers, the Western delegations could muster few votes in opposition. The nature of the disagreement can be better understood by contrasting two conceptions. According to the first, racial discrimination is like a living organism: the delegate from the Ukraine asserted that 'nazism had not died with the ending of the Second World War. It was alive today in South Africa and Southern Rhodesia, and various forms of nazism had developed in West Germany .. .'. In this view, racial discrimination was an outward form or manifestation of a pathological internal condition produced by a certain kind of social structure. It was restricted to particular historical and geographical circumstances, and therefore could be eliminated. According to the second conception, racial discrimination was a normal characteristic of social relations, one that could be found, either currently or potentially, wherever and whenever people differentiated themselves in terms of race, colour, descent, or national or ethnic origin. Official action could reduce it, as such action has discouraged people from driving a car after drinking alcohol, or without using a seatbelt, or riding a motor cycle without a crash helmet, but it would not eliminate discrimination any more than it has eliminated motoring offences.

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Even those who object to the first conception can be pleased that it was so widespread at the time, because otherwise it would almost certainly have been impossible to muster sufficient enthusiasm to secure adoption of the Convention. Most of those who supported the proposal seem to have believed that racial discrimination was something practised in a few pariah countries, but not in their own. They appear not to have appreciated the scope of the definition in article 1, and the way it comprehended relations between individuals within the private sector as well as the actions of governments. None of the drafts of the Convention attempted to enumerate or specify the forms of racial discrimination, and there might have been no discussion of the forms had not Brazil and the USA proposed in the Third Committee to insert into the draft a new article: States Parties condemn anti-Semitism and shall take action as appropriate for its speedy eradication in the territories subject to their jurisdiction.

This provoked a counter-proposal from the USSR: States Parties condemn anti-Semitism, Zionism, nazism, neo-nazism and all other forms of the policy and ideology of colonialism, national and race hatred and exclusiveness and shall take action as appropriate for the speedy eradication of those inhuman ideas and practices in the territories subject to their jurisdiction.

Poland wanted a reference to 'nazist and similar practices' and Czechoslovakia to the 'dissemination of racial, fascist, nazi or other ideas and doctrines based on racial superiority or hatred'. The Polish representative wanted this reference in the preambular paragraph because 'nazism . . . was the most flagrant manifestation of racial discrimination'. Yugoslavia could not understand why there should not be 'a reference to something which had caused the extermination of millions of human beings ... more than one million Yugoslavs had died fighting nazism . . . '. The Soviet representative appealed to all delegations to understand his country's concern at the possibility of a repetition of the horrors of nazism. Either the draft Convention must confine itself to a general prohibition and condemnation of all forms and manifestations of racial discrimination, or it must enumerate the various forms; even if one other form of racial discrimination was mentioned, his delegation must insist most forcefully that reference should also be made to nazism and neo-nazism.

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In his view, all forms were equally dangerous; 'nazism and fascism were quite as dangerous as apartheid, and Zionism as antiSemitism.' The Mongolian representative concurred, while Jordan proposed the insertion of the words 'fascist, colonial, tribal, Zionist and similar practices'. The speaker from the Sudan maintained that anti-Semitism was alien to the Moslem world: 'Indeed, when antiSemitism had arisen and intensified in Europe, it was in the Moslem countries that Jews had often sought and found refuge.' The current dispute over Israel was neither religious nor racial but political. 'For the Arabs, Israel was what South Africa was to the African nationalists and Zionism was the equivalent of apartheid.' The representative of Saudi Arabia opposed reference to any forms because there were countless 'isms' which would have to be enumerated if any one was. For example, while the greatest recent affliction of Europe had been nazism, for the rest of the world it had no doubt been colonialism, and it could be convincingly argued that colonialism was a cause of racial discrimination. In addition, Arabs had suffered owing to a certain ,.!Sill ' . . •

He asked if anti-Semitism applied 'to persons of Semitic ethnic origin, of whom 95 per cent were Arabs?' Later he argued that antiSemitism should more correctly be called anti-Judaism, and that it was an exclusively European phenomenon. Other countries, like Nigeria and India, joined in opposing any reference to particular forms, contending that the convention 'should be formulated in quite general terms so that it would be applicable to the entire world'. The delegates of Malawi, Iraq, and the Sudan concurred, cautioning that no one could foresee what new forms of racism might arise in the future. Like others, their conception of a 'form' assumed that racial discrimination was a social pathology. The course of the debate was then changed by an announcement from the Moroccan delegate 'that the Afro-Asian group had decided to reject all new proposals and to vote in favour of the original text'. Brazil and the USA were unwilling to withdraw their proposed amendment but the balance of opinion was swinging strongly against them. Greece and Hungary proposed a resolution directed against 'any reference to specific forms of racial discrimination'. The Philippines moved adjournment of the debate. The Chairman asked for a vote on whether the Greek and Hungarian

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motion should have priority; the Committee agreed that it should, by 80 votes to 7, with 18 abstentions. Thus, on a procedural motion, the Committee decided that there should be no reference to specific forms. In an explanation of vote, the Belgian delegate said that he had voted against the resolution in the belief that it was inconsistent with article 3 of the draft convention, adopted three days earlier, which by condemning 'segregation and apartheid' had already included a reference to a specific form of racial discrimination. But this was to no avail, and the reference in question was subsequently defended by Nigeria on the grounds that apartheid was different in being 'the official policy of a State Member of the United Nations'. This decision narrowed the area of contention, and thereafter the debate proceeded more smoothly. The main remaining area of contention centred upon article 4 with its requirement that states should (a) make all dissemination of ideas based on racial superiority punishable by law; and (b) prohibit organizations which incite discrimination and make participation in them punishable by law. Some West European States were anxious that any resulting legislation might be in conflict with rights to freedom of expression and association, but chose not to delay the drafting process because they would have an opportunity to make reservations covering these points at later stages.

THE STRUCTURE OF THE CONVENTION The Convention as it was eventually adopted consists of three parts. Part I (articles 1-7) specifies the substantive obligations of states parties. In article 1 the term 'racial discrimination' is defined and the limits of the scope and applicability of the Convention are demarcated. Articles 2-6 list what states parties have to do in order to eliminate racial discrimination. Implementation of the Convention's anti-discrimination provisions is the responsibility of the states. What most differentiates a Convention from a Declaration is that the list of obligations is followed in Part II by provisions for the international scrutiny and review of the way states fulfil their obligations. There is, firstly, an obligatory reporting procedure (article 9); secondly, a discretionary procedure whereby one state party may complain about another state party's non-fulfilment

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of its obligations (articles 11-13 and 16) (since no state has shown any interest in utilizing this provision, questions can be asked about why it was thought worth including it); thirdly, an optional procedure for the adjudication of complaints from individuals (article 14); and, fourthly, an advisory responsibility regarding racial discrimination in colonial territories. This scrutiny and review is to be carried out by a Committee (CERD); its election, mandate, and meetings are specified in articles 8-10. Part III of the Convention (articles 17-25) governs such matters as signature, ratification, accession, denunciation, entry into force, reservations, revision, and settlement of disputes over the interpretation or application of the Convention. The documentary record does not tell the whole story of the drafting process. There may be much behind-the-scenes consultation before a proposal is brought forward. A case in·- point concerns what became article 14, the procedure by which a state party may allow individual complainants to petition the Committee. In 1965 the USSR was strongly opposed to such procedures and when ratifying this and other conventions it entered reservations to prevent its becoming subject, without its consent, to the jurisdiction of the International Court of Justice. The author has been told that, when Mr Lamptey told the Soviet delegation that his president, Kwame Nkrumah, supported the inclusion of such a provision in the Convention, they agreed not to oppose it. If true, that reflects the politics of the mid-1960s. The practice of states regarding treaty-making varies. Some will first sign and later proceed to ratification according to the provisions of their domestic law. Other states accede directly. A treaty may come into force once a certain number of states have acceded. When a state ceases to exist (perhaps because it divides into two or more states), the successor states may declare that they continue to be bound by obligations assumed by their predecessors. To give effect to their assumption of obligations, some states are able to incorporate a treaty into their domestic law, so that the treaty can be invoked before, and be enforced by, its domestic courts, tribunals, or administrative authorities. For example, Tunisia, in its twelfth periodic report under the Convention, stated that in Tunisia conventions are one of the sources of law. By the act of ratification alone, they are immediately included in national law. No higher authority is necessary to decide beforehand whether the

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national law is in conformity with these treaties or not. Nor is it necessary for the provisions of those treaties to be transposed into national laws in order to be applicable. Tunisia has opted for the monist concept according to which the national order and the international order are compatible with one another.

Other states, with different kinds of constitution, have to give effect to their obligations by way of internal laws or administrative regulations. This mode of implementation is sometimes said to exemplify dualism, according to which the rules of international law and domestic law exist separately. If a state fails to implement domestically all its treaty obligations, the remedy has to lie in the international field and is in the hands of the other states parties to the treaty. Many of the Convention's articles have occasioned general recommendations formulated by CERD. The most relevant ones are set out in Appendix II. Nevertheless, it may be helpful to draw attention at this point to certain features of the Convention's definition of racial discrimination. It should be noted that when a state legislates against discrimination it creates a protected class. The definition of racial discrimination in ICERD article 1.1 creates such a class divided into five subclasses: race, colour, descent, national origin, and ethnic origin. This differentiation will be discussed in greater detail later in connection with the laws of particular states. For the present, it is important to remark that the Convention does not prohibit discrimination in private relations such as the choice of marriage partners, in decisions about which shops to patronize, or in the making of bequests to charities intended for the benefit of persons belonging to a particular ethnic group. Discrimination is prohibited in what may be called protected fields-those of human rights and fundamental freedoms, including equality before the law, the right to security, political and civil rights, and economic, social, and cultural rights (the latter two sets paralleling the two covenants). The right of states to distinguish between citizens and noncitizens is explicitly excepted from the protected fields. Another exception, set out in article 2.2, permits preferential measures on behalf of disadvantaged groups. Some states, like the UK, make further exceptions in their domestic legislation with the objective of overcoming disadvantage. ICERD prohibits distinctions which have the 'purpose or effect'

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of impairing the rights of persons in the protected classes. The addition of the words 'or effect' extends and complicates the definition of discrimination. It is surely proper to interpret the word 'purpose' in article 1.1 as denoting action motivated by a belief that the other person belongs to a particular race. Motivation is a concept similar to, but wider than, that of intention. Actions are intended to secure particular goals; they are forms of conscious behaviour. Whatever their intentions in performing particular actions, actors are also motivated by ambition, avarice, jealousy, loyalty, pride, and other preoccupations of which they are not necessarily conscious. Racial prejudice may be a motivation without being an intention. In many systems of criminal law a conviction requires evidence to satisfy the condition actus non facit reum, nisi mens sit rea (there can be no crime without a guilty mind). A court may listen to evidence about, say, the behaviour of someone who left a store without paying for goods placed in the pocket or the bag of the accused. The court compares the description of the accused's behaviour with his or her explanation of it to determine whether, at the time in question, the action sprang from a guilty mind. The law against discrimination prohibits certain kinds of motivation in certain circumstances. Someone influenced by one of them may be found to have had a guilty mind. By adding the words 'or effect' ICERD went much further and declared that an action performed with a laudable intention could still be unlawful if it had a discriminatory effect. That effect could be one that could not have been foreseen at the relevant time. It complicates the law, because to a certain extent it detaches the concept of discrimination from that of unlawful grounds. It is insufficient for a court to find that an action has sprung from a guilty mind. It has to relate that finding to a particular prohibition if it is to declare that a law has been broken. If one man treats another less favourably because he is a Jew, is that discrimination on grounds of race, ethnic origin, or religion? If, in Northern Ireland, a Protestant shows favour to another Protestant, is that on grounds of religion or political identification? If a Serb treats a Croat, or an Armenian treats an Azeri, less favourably, is that on grounds of ethnic or national origin? If an ethnic minority seeks to secede from a state and is prevented from so doing, is that prevention of ethnic discrimination? There are many such questions

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that arise from the concept of grounds, and which at present are either difficult or impossible to answer. A court can only review the evidence before it and decide whether the particular action of a particular accused sprang from a particular prohibited motivation. A state may be in breach of the Convention but not an individual. To comply with the Convention a state has to enact laws prohibiting both actions with a discriminatory purpose (direct discrimination) and actions with a discriminatory effect (indirect discrimination). They may provide different penalties to deal with indirect discrimination because it does not spring from a guilty mind (if it did, then the action would be direct discrimination). Individuals and corporations can be in breach of those laws. A state could be found in breach of the Convention if it acted in contravention of its provisions. The adoption of the Convention was a major achievement, the greater because it was adopted on a unanimous vote. 1 Those states which ratified it would be subjecting themselves to a new form of international supervision for which there was no corresponding provision in, for example, the Genocide Convention. They would be undertaking to report on the discharge of their obligations to an independent committee which would in turn be reporting to the General Assembly on the outcome of its examination of state reports. There were other provisions whereby the Committee might consider interstate disputes and individual petitions, again of a relatively novel character. After the vote, the floor was given to the Ghanaian delegate (Mr Lamprey), who had played the leading role in negotiations. He explained that some representatives would have liked a stronger convention; he hoped that the present one might in a few years be replaced by a more effective instrument. Yet he could add that: 'when the story of the twentieth session of the General Assembly comes to be told, it can well be said, as it was said by a great war leader: This was its finest hour.' Fourteen years later, when the then Director of the UN's division of human rights (Mr Theo van Boven) addressed a meeting of the Committee, he recalled the opinion of the official who had had the administrative responsibility for the drafting of the Convention (Mr Egon 1 There was one minor drama. The representative of Mexico abstained from voting on the adoption of the Convention. At a further session of the Assembly later the same day he announced that he had obtained new instructions from his foreign ministry and asked that his vote be changed to an affirmative one.

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Schwelb) that Mr Lamptey 'proved how, under certain favourable conditions, one person can have a major impact on an important branch of the work of the United Nations'. Adoption of the Convention opened the way to the adoption of the two Covenants which are so much wider in scope (SR 407).

RACIAL DISCRIMINATION AS SOCIAL PATHOLOGY Subsequent chapters will maintain that the delegates m 1965 launched a bigger enterprise than they realized, and that Mr Lamprey had no cause for disappointment. This may, however, be the point at which to return to the unanswered questions about what are the various forms of racial discrimination, and how a new form might be identified. As has already been indicated, the ways in which the delegates spoke suggested a philosophical polarity between two conceptions of racial discrimination. According to the first of these, no distinction could be drawn between the forms and the manifestations of racial discrimination, all of which could be traced back to historical movements. The causes of racial discrimination, which were not distinguished from its forms, were thought to lie in the structure of the society, and this might offer to its members few alternative ways of behaving. Since states differed in their social structures, any struggle against racial discrimination had in some measure to be a matter of foreign policy. The persistence of this conception may explain why the states parties have so often nominated diplomats for election to the Committee. According to the second conception, racial discrimination presented a complex problem to be tackled in the same ways as other social problems with which governments were confronted. As with other domestic problems, much could be learnt about causes from the examination of individual behaviour and it was of only limited value to try to enumerate forms. Those who pictured racial discrimination as pathological seem to have drawn (consciously or unconsciously) upon the prescriptions of philosophical realism. They wanted their definition to grasp the single underlying cause of discrimination that produced the observable kinds of behaviour. This cause had psychological, socioeconomic, and ideological components which varied in their

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relative importance as circumstances changed. Hence any diagnosis had to be historical and to start with the collective phenomena that influenced individual conduct. Thus, for the Soviet representative, the most important social conditions producing racial discrimination were state policies (imperialism, colonialism, Zionism, nazism) and political movements (neo-nazism, fascism, and antiSemitism). These conditions came together in particular historical constellations, so for him, as for the Yugoslav delegate, it would not have been unreasonable to picture nazism as an agent which caused the death of millions. If racial discrimination (or racism) was like a sickness, it was like an epidemic rather than an individual malady. This was the reality that had to be grasped by a definition. There will, however, always be different ideas about what is socially pathological. To recall Lady Gaitskill's metaphor, who says that the plant is a weed? Could it not be a useful plant that has been prevented from bearing fruit by some form of mildew borne in the atmosphere? The roots may still be healthy. Botanists have objective methods for determining the pathological, sociologists do not. Nor have any clear criteria been suggested for deciding just what is a form of racial discrimination, and it was their absence which left the way open to proclamations such as that of the General Assembly resolution which 'determines that Zionism is a form of racism and racial discrimination'. The presumption that racial discrimination is pathological was not challenged in the UN debate, because the alternative view was never advanced. Since human nature and social organization are not perfect, there is a normal expectation that some individuals will at times be motivated by prejudices (just as some individuals will commit crimes), some socio-economic structures will at times heighten conflicts of group interest, and some belief systems will disseminate false forms of consciousness. Quite apart from such considerations, all individuals have preferences about the kinds of people with whom they wish to associate, and differences in outward appearance may be one factor among many in their preferences. For such reasons, the potential causes of racial discrimination are multitudinous. Just as it is said that 'every man has his price', so there are circumstances in which any person will discriminate. Some discrimination may be morally justifiable (like that described in article 2.2 of the Convention). According to such

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a view, the definition of racial discrimination should follow the prescription of philosophical nominalism, conceiving of racial discrimination as simply those actions which were named in the Convention in the sense that they fell within the scope of article 1 's definition. Such a prescription generates 'how' questions rather than 'why' questions. The origins of discriminatory structures and of racial doctrines may repay historical examination, but historical analysis is not essential; action against racial discrimination is to be devised in the here-and-now. Social conditioning may be important, but its effects have first to be identified in individuals before working up to their sources at the level of collective life. Seen from this standpoint, to describe racial discrimination as a social sickness is to evade the conclusion that for every act of unlawful discrimination someone is responsible and should be brought to account. The philosophical polarity between the two ways of defining racial discrimination is paralleled by another contrast, which depends upon whether the emphasis is placed on the first word or the second. Statements are sometimes made to CERD about the racial composition of a country's population which derive from the conceptions of race that were current in the anthropology of the 1930s rather than from the manner in which anthropologists study human variation in the 1990s. To emphasize race is to start on the wrong foot. The alternative emphasis begins from the general nature of discrimination and looks for common causes underlying racial, sex, religious, and other forms of discrimination. Many countries have found it simplest to create a common legal framework for measures to prevent and prohibit discrimination of all kinds. Their laws may make it possible to assess individual responsibility for the denial of admission to restaurants or dance halls, of access to employment, education, housing, and so on. This leads to a more practical understanding of racial discrimination and of ways to combat it. It can be more difficult to assess responsibility on the political level. Governments often share collective responsibility for their decisions; they may act in a questionable manner in the present from a belief that by doing so they may achieve a better result in the longer term. It is then difficult to apply the criteria of criminal responsibility. Nevertheless, under international law a head of state can now be held responsible for an action that is a crime

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under international law. The International Convention on the Suppression and Punishment of the Crime of Apartheid presents apartheid as a crime for which responsibility is shared by a very large group indeed. The conception of crime has been expanded. At the time the Convention was adopted, all parties were agreed that racial discrimination was an evil, but their ideas about the nature of that evil derived from different experiences and beliefs. In the General Assembly the delegate of the United Arab Republic (which at that time combined Egypt and Syria) referred to racial discrimination in the USA, South Africa, and Southern Rhodesia. He added 'To the Arabs, Zionism was synonymous with racial discrimination and nazism', and went on: 'colonialism was responsible for all the cases of discrimination he had mentioned, except that of the United States.' The underlying thesis was that colonialism involved contact between unequally developed societies; to secure its position of advantage the colonizing group had to maintain a united front, reserving certain positions for its own members, and in this way introducing occupational and residential segregation. This represented colonialism as a constitutional form within which racial discrimination developed or was encouraged. Even when seen from the Soviet standpoint, colonialism was a progressive phase in world history in that it extended the international network of economic relations, and, by bringing small political units within larger ones, helped create states comparable in size to those of states in other world regions. Racial discrimination was not a prime mover of colonial expansion but an outcome that varied in importance from place to place. The preoccupation with the decolonization process in the General Assembly at the time distracted attention from the ways in which unequal development leads to racial discrimination even without colonialism. The unequal development of states or of regions within states can encourage discrimination, while unequal development is also a major factor in the plight of indigenous peoples. Within industrialized societies, immigrant minorities are often at a disadvantage in employment, housing, education, and health. An employer may be right to believe that members of a given minority are on average less well qualified for a certain kind of position, but quite wrong to assume that a particular job applicant from that minority is therefore inadequately qualified. This is the way in which inequality, or disadvantage, causes discrimination, and it is

211

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the more serious because in so many societies inequality is transmitted from one generation to the next. The children of the rich start with an advantage, and the children of the poor with a handicap. Discrimination based on race, colour, descent, and national or ethnic origin is more persistent when these differences are associated with economic differences. While there may be political advantages in describing colonialism as a form or as a cause of racial discrimination, there seem to be no advantages for social science. Nor can much be derived from the Convention itself. Article 1.1 identifies four kinds of behaviour-distinctions, exclusions, restrictions, and preferenceseach of which can be based on five different grounds, and each of which can have a discriminatory purpose or effect. Multiplying, this could distinguish forty possible forms, but nothing would be gained from the exercise. The analogy with criminal behaviour might suggest instead an analysis of the legal forms of prohibition of discrimination. Here the most important distinction is that between the prohibition of behaviour which is discriminatory in purpose or in effect. In the search for the causes of purposefully discriminatory behaviour, evidence about the acceptance of racial ideologies and about individual psychology will attract attention. In the search for the causes of behaviour that is discriminatory in effect, assumptions deriving from social inequality or unequal development will be to the forefront. When the Convention was being drafted, it was customary to speak of racial discrimination rather than racism. At that time the word racism was used to denote a particular kind of doctrine, but later it came to be used in a much wider sense, so that the General Assembly in 1969 designated the year 1971 as 'International Year for Action to Combat Racism and Racial Discrimination'. The Assembly did not explain why it chose to add the word racism, but it must be assumed that by doing so it meant to extend the scope of the action proposed. In all probability those involved were not crystal clear as to any differentiation of meaning between the two words, and it falls to their successors to try to clarify their best usage. A possible solution might be to use racial discrimination for those forms which are crime-like, and racism for those which are sickness-like. Two particular difficulties with any such suggestion are that the alleged sickness has not been sufficiently well diagnosed and that the word racism (especially in its adjectival form

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racist) so strongly implies a moral condemnation. For example, there have been animated debates in Britain about whether the action of Idi Amin in expelling Asians from Uganda was a form of racism. If racism is defined as a historical force for the exploitation of blacks, can blacks be racist? Anti-Semitism has sometimes been described as a historical force for the expulsion or extermination of Jews. It suggests that one kind of prejudice is to be defined by the identity of its victims rather than by its causes. There can be similar disputes about whether or not ethnic conflicts, like those between Serbs and Croats, qualify as instances. Are they manifestations of the same kind of sickness? Whether or not Zionism is racist, blacks can be racist, or racism depends upon differences of colour are matters of definition, but since in ordinary life there is often little time for such niceties, the power to define what is pathological can be a source of peril. It may sometimes be worthwhile running this risk. In 1990 the Sub-Commission on Prevention of Discrimination and Protection of Minorities adopted a resolution in which it expressed concern that the scourges of racism and racial discrimination were continually assuming new forms, requiring a periodic re-examination of the methods used to combat them. It is probable that in the forefront of members' minds when they spoke of 'new forms' were the attacks on immigrants in West European countries. But to describe such attacks as the appearance of racial discrimination in a new form is to imply that within members of the public, or a proportion of them, a racial hatred has reappeared, and that this explains what has happened. It takes no account of the influence of state policies concerning immigration and of changing circumstances. Nor does it allow sufficiently for changes in motivation. When the Convention was being drafted there was a particular concern with the prohibition of doctrines of racial superiority. Some of the new anti-immigration doctrines in Europe maintain that foreigners from other regions should be excluded not because they are inferior but because they are different. It is argued that the attempt to create multiracial societies has been a failure. Muslims cannot compromise their faith. People of different ethnic origin cannot coexist peacefully, and therefore they are best kept separate. It is possible to maintain that these arguments are new forms of racism, but such a conclusion requires a careful examination of a whole set of assumptions; the purpose of such an interpretation is

213

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usually one of political rhetoric and it does not advance the sociological analysis of trends in those societies in which such arguments gain greater public acceptance. It is the duty of the academic to comment on the language in which political bodies express themselves. In this way the academic can draw the attention of decision-takers to aspects they may have overlooked, which may be particularly important in UN bodies where many people speak in a language other than their mother tongue. It can be relevant to suggest that metaphorical references to racism as a scourge are popular because this word (which denotes a mode of punishment for a crime but is often used for a pestilence) covers up the distinction between a crime and a sickness. THE HAND OF PROVIDENCE One implication of this chapter's arguments is that the Convention was misnamed, and that it should have been entitled a convention for the reduction of racial discrimination. Yet without the political myth that racial discrimination was a social sickness that could be eliminated by political action, would the UN's member states have invested so much energy in legislating? Surely not. The use of such a metaphor may have its drawbacks, but it proved to have great rhetorical power, mobilizing opposition to apartheid, stigmatizing discrimination, and persuading more than three-quarters of states to accede to the Convention. Intellectual argument free from the sorts of emotion displayed in the debate about the forms of racial discrimination could never have brought the same results. To describe discrimination as a sickness, or a noxious weed, may be a way of recruiting a majority to vote for legislation which can then be phrased in terms of the alternative view of discrimination as crime-like. The claim that all forms of racial discrimination could be eliminated was only one of the errors in the Convention adopted in 1965, but it proved to be of positive value. If the hand of Providence can be discerned in some of these misconceptions, then it suggests that the key in 1965 was not any lack of clarity but the presence of political will. The rhetoric then employed was crucial to the creation of that will.

[8] Becoming Human: The Origins and Development of Women's Human Rights Arvonne 5. Fraser* I. INTRODUCTION When the Taliban took power in Afghanistan in 1994, one of its first edicts removed girls from school, forbade women from employment outside the home, and required women to wear garments totally covering themselves when they appeared in public. This measure was a clear abrogation of the principles set forth in the Universal Declaration of Human Rights 1 and the Convention on the Elimination of All Forms of Discrimination Against Women. 2 It struck at the most basic of women's human rights, depriving them of economic, physical, and intellectual independence, and overturned what women internationally had been struggling to achieve for more than five centuries. * Arvonne S. Fraser is senior fellow emerita, Humphrey Institute of Public Affairs, University of Minnesota and the former director of the International Women's Rights Action Watch (IWRAW) project which focused on publicizing and monitoring the women's human rights treaty, the Convention on the Elimination ofAII Forms of Discrimination Against Women. She also organized and co-directed the Center on Women and Public Policy at the Institute. During 1993-94, she served as US representative to the UN Commission on the Status of Women with the rank of Ambassador and was a U.S. delegate to the 1993 World Conference on Human Rights. From 1977-78, she directed the Office of Women in Development at the United States Agency for International Development and was a US delegate to the 1975 and 1980 UN World Conferences on Women. In the 1970s, she was president and legislative director of the Women's Equity Action League (WEAL), an organization that focused on opening educational and employment opportunities for women. 1. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (111), U.N. GAOR, 3d Sess. (Resolutions, part 1), at 71, U.N. Doc. N810 (1948), reprinted in 43 AM. J. INT'L L. Surr. 127 (1949) [hereinafter UDHR]. 2. Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. N34/46 (1980) (entered into force 3 Sept. 1981 ), reprinted in 19 I.L.M. 33 (1980) [hereinafter CEDAW].

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As John Stuart Mill argued in 1869 in his essay, The Subjection of Women,3 the question is whether women must be forced to follow what is perceived as their "natural vocation," i.e. home and family-often called the private sphere-or whether, in private and public life, they are seen as the equal partners of men. 4 While the division of spheres, based on sex and known as patriarchy, may have been justified as a necessary division of labor in the early evolution of the human species, the system long ago outlived its functionality and has been challenged by women, and a few men, since, at least, the fifteenth century. This article will trace the evolution of thought and activism over the centuries aimed at defining women's human rights and implementing the idea that women and men are equal members of society. Three caveats are necessary. First, because women's history has been deliberately ignored over the centuries as a means of keeping women subordinate, and is only now beginning to be recaptured, this is primarily a Northern story until the twentieth century. Second, because of this ignorance, 5 any argument that the struggle to attain rights for women is only a Northern or Western effort is without foundation. Simply not enough available records exist detailing women's struggles or achievements in the Southern or Eastern sections of the world. The few records available to Northern writers attest that women in other parts of the world were not content with their status. Third, the oftheard argument that feminism (read the struggle for women's equality) is a struggle pursued primarily by elite women is simply another example of the traditional demeaning of women. History is replete with examples of male leaders who are not branded with this same charge, even though much of history is about elite men. In addition, it is hoped that this article, and the current activism on behalf of women's human rights, will stimulate historians and human rights activists to delve more deeply into the history of women's human rights throughout the world and further develop this neglected half of history. Such historical research would be a contribution to promoting women's human rights because it is from history, whether written or oral, that role models and traditions are created. As historian Gerda Lerner has written: [T]he fact that women were denied knowledge of the existence of Women's History decisively and negatively affected their intellectual development as a group. Women who did not know that others like them had made intellectual contributions to knowledge and to creative thought were overwhelmed by the sense of their own inferiority or, conversely, the sense of the dangers of their 3.

JoHN STUART M1LL, THE SuaJECTION OF WOMEN (M.I.T. Press 1970) (1869).

4.

See id.

5.

The term ignorance is used here in its original sense, that of something being unknown.

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daring to be different. ... Every thinking woman had to argue with the 'great man' in her head, instead of being strengthened and encouraged by her fore mothers. 6

II. EXECUTIVE SUMMARY The original contributors to women's human rights were those who first taught women to read and, thus, to explore the world outside the home and immediate community. The idea of women's human rights is often cited as beginning in 1792 with Mary Wollstonecraft's book, Vindication of the Rights of Women,7 published in response to promulgation of the naturalrights-of-man theory. Recent historical research, however, has revealed a much longer gestation period, beginning at least in the early fifteenth century with publication of Le Livre de la Cite des Dames [The Book of the City of Ladies] by Christine de Pizan, 8 which stimulated what French feminists call the querelle des femmes (translation: debate about women), a debate that continues to the present. 9 This long debate has been broad and wide-ranging because human life has so many facets. Much of the debate has involved the traditional demeaning of women: a common, often subconscious, technique of one group seeking to maintain power over another. Demeaning an individual or group over time results in stereotyping and the denial of recognition of that group's accomplishments or contributions to society. As the demeaning becomes customary, discrimination results, establishing a rationale for differential treatment of groups and the individuals within the particular group. With discrimination, the less powerful are deprived of their history, their self-confidence, and, eventually, their legal ability to function as full citizens or members of the larger group. The great irony is that women have been charged with-and have often found security in-maintaining customs and tradition, thus, institutionalizing the discrimination against them through the education and socialization of children. Breaking tradition, defying custom, and overcoming discrimination requires courage and leadership. Leaders bent on effecting change must develop a new vision of the world, articulate the problems of the status quo and a new theory of social and political order, and, over time, mobilize a critical mass of supporters who share the new vision and new articulation of

6.

GERDA LERNER, THE CREATION OF FEMINIST CONSCIOUSNESS: FROM THE MIDDLE AGES TO EIGHTEEN-SEVENTY

7.

MARY WOLLSTONECRAFT, VINDICATION OF THE RIGHTS OF WOMEN (Source Book Press

8.

CHRISTINE DE P1ZAN, THE BooK OF THE C1rv OF LADIES (Earl Jeffrey Richards trans., Persea Books

9.

]OAN KELLY, WoMEN, HISTORY AND THEORY

12 (1993).

1982) (1405). 65-66 (1984).

1971) (1792).

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the problems. For women, taking leadership was a double-edged problem, a contradiction in terms. For most women, especially before safe and effective birth control was available, marriage, home, and family were their means of economic survival and social acceptance. Girls were groomed for marriage, for reproduction and nurturance of the human species. While lauded in the abstract, and often romanticized, marriage and reproduction also have been demeaned throughout history. As Menander said two or three centuries before the birth of Christ: "Marriage, if one will face the truth, is an evil, but a necessary evil." 10 As the Taliban so clearly understands, the prerequisites for development and implementation of women's human rights are: education; the means and ability to make a living beyond child bearing, homemaking, and caring for families; freedom of movement; and a measure of respect as individual human beings, not prisoners of their sex. Education involves the ability to receive, create, and disseminate knowledge. Knowledge is power, the foundation of intellectual and political development. It is gained through experience, education, and association with knowledgeable others. Expanded literacy among women allowed those who could not escape the confines of home to learn about the outside world and, through writing, to recount their experiences and express their ideas. Freedom to move in public and to travel independently, even within a limited area, allows both for gaining more experience and for exchanging experiences with others, increasing both knowledge and education. It took centuries for women to gain the right to education and the opportunity to find employment outside the home; it was only after women were afforded these opportunities that they could communicate their experiences inside and outside the home. The resulting education offered new opportunities for women, such as the ability, for sexually active women, to limit childbearing. The beginning of women's education began with literacy. As literacy rates increased, women began to articulate their view of the world. Many wrote anonymously at first in order to have their work accepted for publication. The Industrial Revolution and the concomitant advances in science and technology contributed immensely to women's emancipation. Not only did more women find employment outside the home, but travel and communication became easier and cheaper. A major breakthrough was the development of safe, effective, and legal means of birth control. The fact that distribution of birth control information and devices was illegal in most countries until the early twentieth century, and that the term "family planning" became a substitute for birth control, is additional testimony to

10.

]OHN BARTLETT, BARTLETT'S FAMILIAR QUOTATIONS

fragment).

651 (9th ed. 1901) (quoting an unindentified

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the dilemma Mill identified-that men have believed that they must control women in order for them to engage in their natural vocation, that of bearing and raising children and maintaining homes. Along with advances in health, sanitation, and medicine, an increasing number of women began living beyond their childbearing years and more children survived. Men's fear that women would not reproduce lessened, and the ability of women to participate in economic and political life increased. By the time the United Nations was formed in the mid-twentieth century, internationally, a critical mass of women had been educated, were employed outside the home, and had obtained enough legal and social freedom to participate in public life, even at the international level. Numerous international women's organizations had fifty years of experience behind them. As a result of lobbying by these organizations, and with support from female delegates, the phrase "equal rights of men and women" was inserted in the UN Charter. 11 When the Universal Declaration of Human Rights (UDHR) was drafted, the term "everyone" rather than the personal pronoun "his" was used in most, but not all, of its articles. 12 When the Commission on Human Rights failed to recognize women's aspirations adequately, women delegates and the nongovernmental organizations (NGOs) supporting them were politically powerful and astute enough to obtain a freestanding Commission on the Status of Women (CSW). 13 By 1979, the CSW, with the support of women delegates and NGOs and a new wave of feminism underway, had drafted and successfully lobbied the adoption of the Convention on the Elimination of All Forms of Discrimination Against Women. 14 The Convention wove together all the ideas discussed during the preceding five centuries of debate and placed a strong emphasis on the concept of equality in family matters. The Convention covered civil and political rights as well as economic and social rights, and, in 1980, with the requisite number of ratifications obtained, the Convention became the international women's human rights treaty. 15 At the 1993 world conference on human rights, NGOs, focused on women's human rights, brought the previously hidden issue of violence against women to international attention. "Women's rights are human rights" became the cry. Although the

11. 12. 13. 14. 15.

U.N. CHARTER pmbl., signed 26 June 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153 (entered into force 24 Oct. 1945). See generally UDHR, supra note 1. See generally ARVONNE S. FRASER, LOOKING m THE FUTURE: EQUAL PARTNERSHIP BETWEEN MEN AND WOMEN IN THE 21 ST CENTURY (1983). CEDAW, supra note 2.

Id.

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debate, begun in 1405, continues, and the Taliban's edict illustrates that women's position in society can deteriorate, there is now worldwide recognition that the term "women's human rights" is not a redundancy. The drive to define women's human rights and eliminate discrimination against them can be seen as part of the worldwide democratization effort. The question now is whether women will exercise their political muscle sufficiently at national, local, and international levels to assure universal implementation of the women's human rights treaty. This depends on whether women, in partnership with men, can effectively rationalize the relationships between the private and public spheres-between work, family, and public life. An important related question is whether women in all countries will redeem their history and use it to validate and support their struggle for equality and justice, or whether, as in the past, new women's movements will have to be organized every few generations to account for the lack of women's history and the shortcomings in traditional education and socialization of girls.

Ill. THE ORIGINS: DEFINING THE ISSUES In 1405, Christine de Pizan's book, Le Livre de la Cite des Oames, 16 was published, partially in response to Giovanni Boccaccio's earlier book, Concerning Famous Women, 17 that described exceptional women of history who had acquired "manly spirit" and other male attributes such as "keen intelligence ... and remarkable fortitude" 18 and who dared to undertake difficult deeds. Boccaccio believed the histories of these women should be recorded just as the histories of male leaders were recorded. 19 De Pizan, a widow supporting her family by writing, responded to Boccaccio and other male writers of her day, not only by creating her own list of important women of the past, but also by encouraging women of all classes to look to their own experience and resist being limited and demeaned by men. 20 De Pizan argued for women's right to be educated, to be able to live and work independently, to participate in public life, and be masters of their own fate. One of the leading intellectuals of her day, her extensive published works demonstrate that she was an astute political observer as well as a theorist. 21

16. 17.

18. 19. 20. 21.

DE P1ZAN, supra note 8. GiovANN1 BoccAc10, CONCERNING FAMOUS WoMEN (Guido A. Guarino trans., Rutgers University Press 1963) (1361). Guido A. Guarino, Introduction to CONCERNING FAMous WoMEN, supra note 17, at xxxviii.

See generally id.

The term "demeaned" was used frequently before the word "discrimination" was popularized. Marina Warner, Foreword to m P1ZAN, supra note 8.

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Feminist historian Gerda Lerner credits de Pizan with the first deliberate effort of raising women's consciousness, but laments the fact that, although numerous women later published lists of famous women, few used de Pizan as a reference-an example of how the lack of knowledge of women's history impedes intellectual development. 22 Joan Kelly, another feminist historian, argues that de Pizan opened the querelle des femmes, or debate about women, by establishing the basic postulates of feminism. 23 (Feminism is used throughout this article in its original meaning: the theory of, and the struggle for, equality for women.) Kelly also asserts that de Pizan and her European successors focused on what is now called "gender"-the concept that the opposition to women is not simply biologically based but culturally based as well. Four points are important about de Pizan and her work. The first is obvious but merits restatement: she could not have written her book if she had been illiterate. Like many who followed her, she used the printed word and publication of her ideas to describe the situation of women. She not only contributed to the historical record, she analyzed life from a women's perspective, basing her conclusions not only on her own life, but also on the lives of her predecessors. The ability to gain and disseminate knowledge, to record history, and to express new ideas and life experiences in printed form is, as noted above, a prerequisite for challenging social and political norms. De Pizan used her education and experiences to think, which Wollstonecraft would later argue was a necessity for girls. The ability to analyze one's circumstances and derive wisdom from that analysis is· an important intellectual exercise, especially when the individual, her group, and her work are demeaned by the wider world. Second, de Pizan directly challenged the confinement of women to the private sphere of home and family. She placed herself in the public sphere and demonstrated that women could provide for themselves economically, as many women, particularly widows, had done before her. Third, de Pizan began a tradition of women writing for publication not only to express their ideas, but to offer economic support for themselves and their families. Finally, she understood that history, whether oral or written, is a political tool used to maintain power, to reinforce the dominant culture, and to record actions that affect the public sphere. History is not merely a record of leadership; it provides role models. As Cicero said, history provides guidance in daily life. De Pizan understood that denying a group its history and suppressing its record of leadership results in disempowerment of the group. She knew that the record of actions by those who challenge existing power structures is 22. 23.

supra note 6, at 261. supra note 9, at 65-66.

LERNER, KELLY,

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often deliberately suppressed and, unless that group is successful and becomes a new political force, the history is lost. History, as a record of male leadership, has been used, perhaps subconsciously, to reinforce the idea that women are insignificant and subordinate and, therefore, belong to the private sphere. Especially in societies where literacy is low and women's organizations are apolitical, male-dominated history and tradition maintain the existing social and political order. De Pizan and many of her successors have been omitted from recorded history, thus, prolonging the struggle for women to achieve their human rights.

IV. THE DRIVE FOR EDUCATION AND INDEPENDENCE Throughout the sixteenth and seventeenth centuries, increasing numbers of girls, primarily in royal and wealthy families, were educated. More and more women began writing for publication, although often anonymously for fear of being seen as "intruding" on the public sphere. During the seventeenth century, numerous women writers, including Marie de Gournay of France, in her Egalite des hommes et des femmes, 24 argued for. the education of girls and women, citing its lack as a major cause of women's inferior status. 25 In 1659, Anna Maria von Schurman's The Learned Maid or Whether a Maid May be a Scholar 26 appeared in English translation, echoing de Gournay. In 1670, Aphra Behn, said to be the first English woman to make her living by writing, had her play, The Forc'd Marriage, or the Jealous Bridegroom,2 7 performed in London. While satirizing male behavior, Behn argued in her play for women's education and responded to public criticism of lack of knowledge of Greek and Latin by noting that Shakespeare had not known the languages either. She was one of the firstand still too rare-feminists who used humor and public entertainment to make her point. A generation later, in 1694, Englishwoman Mary Astell, in A Serious Proposal to the Ladies, 28 called for institutions of higher learning for women. De Gournay, Behn, Astell, and others, some still unknown in history, followed in de Pizan's tradition by using their own experiences and skills to

24.

MARIE LE JARS DE GoURNAY, EGALITE DES HOMMES ET DES FEMMES [EQUALITY OF MEN AND WOMEN]

25. 26.

See id. ANNA MARIA VON SCHURMAN, THE LEARNED MAID; OR, WHETHER A MAID MAY BE A SCHOLAR (n.p.

27.

APHRA BEHN, THE FoRc'D MARRIAGE, OR THE JEALOUS BRIDEGROOM

(Librairie Droz

1659). English Books,

28.

1993) (1641 ).

1641-1700; 446:1

(1671 ), microformed on

Early

(Univ. Microfilms).

MARY AsnLL, A SER1ous PROPOSAL TO THE LADIES, FOR THE ADVANCEMENT OF THEIR TRUE AND GREATEST INTEREST, PARTS I

& II

(Patricia Springborg ed., Pickering

&

Chatto

1997) (1694 & 1697).

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expose the folly of women's position in society and to dramatize male condemnation of any deviation from that norm. Behn, a popular, seventeenth-century, English playwright who argued for a woman's right to choose to marry or to remain single, was publicly scorned and her work ignored after her death. At least one historian of the intellectual progress of women, Dale Spender, makes the point that discrimination and sexual harassment are new in name only. 29 Demeaning women took a virulent form in print and in person, not only of women of achievement, but of all women. 30 Spender argues that it was Astell who defined patriarchy and its attributes by attacking marriage as an institution that served to keep women subordinate. Astell was succeeded in this attack by Lady Mary Wortley Montagu. Spender credits Lady Montagu with being the first English woman to directly enter the political arena by publishing a periodical entitled The Nonsense of Common Sense. 31 It is assumed she was also the author of a series signed "Sophia, a Person of Quality." In the series and in her Letters, published a year after her death in 1762, Lady Montagu introduced numerous topics attributed to later feminists, including the rights to education and construction of knowledge based on their own experiences; she also discussed the legal and social constraints of marriage and the influence of custom and its confusion with nature. 32 During the eighteenth century, educated women who argued for women's intellectual equality and promoted expanded educational opportunities for women became known as "bluestockings." Englishwoman Hannah More and others throughout Europe not only argued for women's and girls' education, but also organized women to establish schools. Even the more conservative women argued that education of girls was important because it meant that they would be better wives and mothers. Organizing women to promote girls' education became socially acceptable, as did writing for publication. As Anne Hutchinson's experience in the colony of Massachusetts dramatically demonstrated, however, organizing for more political purposes was dangerous. In 1637, Hutchinson was charged with heresy for daring to question the religious/political authorities of the colony. Though Hutchinson left no personal written record, the

29. 30. 31. 32.

See DALE See id.

SPENDER, WoMEN OF IDEAS (AND WHAT MEN HAvE DoNE TO THEM) (1982).

LADY MARY WoRTLEY MoNTAGu, THE NoNsENSE OF CoMMON SENSE, 1737-1738 (Robert Halsband ed., 1947). See generally 3 A HisTORY OF WOMEN IN THE WEST: RENAISSANCE AND ENLIGHTENMENT PARADOXES (Georges Duby & Michelle Perrot general eds., Natalie Zemon Davis & Arlette Farge eds., 1993); ELLEN MoERs, LITERARY WoMEN (1976); BoNNIE S. ANDERSON & Jurnrn P. Z1NSSER, A HISTORY OF THEIR OwN: WOMEN IN EuROPE FROM PREHISTORY TO THE PRESENT (1988); LERNER, supra note 6, at 205-6.

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proceedings of her trial for heresy were published. 33 Hutchinson and her husband had emigrated from England as members of a dissident religious community. A midwife and lay medical practitioner, she organized a series of women's meetings in her home where she expressed the belief that individuals had the right to determine their own beliefs, to read the Bible and talk directly to God, and to not be subject to the explications and interpretations of religious authorities. This open assertion of freedom of conscience and of speech was anathema to the colony's religious and political leaders who asserted that only they had the right to interpret God's word. Hutchinson and her merchant husband also hosted discussions in their home about the decisions of the political leaders on business matters in the colony. Interestingly, at trial, Hutchinson was allowed to testify on her own behalf, a practice that was later abolished in many jurisdictions, leaving representation of women to their husbands or other male relatives. During her trial, Hutchinson refused to be demeaned. She held her own in intellectual sparring with Governor John Winthrop, who served as both judge and prosecutor. Her hosting meetings was considered "a thing not tolerable nor comely in the sight of God nor fitting for [her] sex." 34 Hutchinson was excommunicated for troubling the church and for drawing people away from the church. 35 Although she and her family were banished from the colony and moved to Rhode Island, her assertion of her human rights became legendary. American school children, at least those of the author's generation and earlier, in their study of early American history learned about Anne Hutchinson as a champion of religious freedom.

V. WOLLSTONECRAFT AND THE RIGHTS OF WOMEN By 1792, when Wollstonecraft published A Vindication of the Rights of Women, 36 she only reiterated what numerous women, and a few men, before her had already written. Wollstonecraft had previously written Thoughts on the Education of Daughters, 37 as well as an autobiographical

33. 34.

See AMY ScHRAGER LANG, PROPHETIC WOMAN: ANNE HuTCHINSON AND THE PROBLEM OF D1ssENT IN THE LmRATURE OF NEw ENGLAND (1987). See also SELMA R. W1LUAMs, D1v1NE REBEL: THE L1FE OF ANNE MARBURY HUTCHINSON (1981 ). W1LL1AMs, supra note 33, at 149 (quoting Governor Winthrop's opening statement against Hutchinson at her trial).

35.

36. 37.

See generally id. at 180 (citing A Report of the Trial of Mrs. Anne Hutchinson Before the Church in Boston, 1638, 4 MASs. HisT. Soc'y (2d ser. 1889)). WOLLSTONECRAFT, supra note 7. MARY WOLLSTONECRAFT, THOUGHTS ON EDUCATION OF DAUGHTERS: WITH REFLECTIONS ON FEMALE CONDUCT IN THE MORE IMPORTANT Dums OF L1FE (Microfilm Corp. of America 1980) (1787).

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novel entitled Mary 38 based on her own experiences as the daughter of a violent father and as a governess and teacher. In her Thoughts on the Education of Daughters, Wollstonecraft urged that girls be taught to think and their curiosity stimulated, revolutionary ideas for her time. She also responded to Edmund Burke's Reflections on the French Revolution 39 with her own pamphlet entitled Vindication of the Rights of Men, 40 in which she ridiculed his oversight of poverty in England, an issue that other female writers would discuss in the nineteenth century. Drawing attention to other less powerful groups and analogizing their situations to those of women was a path numerous leaders would later follow. As a political commentator and translator working for Joseph Johnson and his Analytical Review, Wollstonecraft was familiar with the intellectual currents of Europe and was a friend of the American revolutionary writer, Thomas Paine. She was undoubtedly familiar with the work of Frenchwomen Madame de Genlis, who promoted girls' education, and that of Olympe de Gouges, a well-known pamphleteer on behalf of women's political rights and equality in law. Whether she knew of Condorcet's Sur /'admission des femmes au droit de la Cite, 41 published in 1790, or of German legal scholar van Hippel's revised views on women that called for political, educational, and professional rights for women is unknown, but both van Hippel and Wollstonecraft acknowledged Englishwoman Catharine Macaulay's earlier work on women's education. 42 A well-known English historian and an early bluestocking, Macaulay was a correspondent of George Washington and an advocate of the American experiment. Her reputation as a historian was tarnished when her Letters, in which she bemoaned women's lack of political rights and particularly the lack of married women's legal rights, were published. 43 Both Wollstonecraft and Macaulay lived their beliefs by undertaking unconventional marriages or choosing not to marry at all. Yet, while Wollstonecraft's reputation among feminists survived, Macaulay's did not-despite Wollstonecraft's acknowledgment of her debt to her. Feminist historians argue that what distinguishes Wollstonecraft is that she was the first to put her theories in the context of a broader liberationist, modern human rights theory. In addition, she wrote in a more modern style, 38. 39.

MARY WOLLSTONECRAFT, MARY (Janet Todd ed., N.Y.U. Press

40.

MARY WOLLSTONECRAFT, VINDICATION OF THE RIGHTS OF MEN

1920). MARY WOLLSTONECRAFT: A B1ocRAPHY

41.

(1972).

Co.

ELEANOR FLEXNER,

TRANSLATION OF CoNDORcET's EssAY "SuR L'ADM1ss10N DES FEMMES AU DROIT DE cm"

Drysdale Vickery trans., Garden City Press

See

& KAREN M. 97-118 (1983). & ZINSSER, supra note 32,

SusAN GROAG BELL

ANDERSON

(Alice

1912) (1787).

OFFEN, WoMEN, THE FAMILY AND FREEDOM: THE DEBATE 1N

DOCUMENTS

43.

(1791 ), reprinted in

&

JEAN-ANTOINE-NICOLAS DE CARITAT CONDORCET, THE FIRST ESSAY ON THE POLITICAL RIGHTS OF WOMEN: A

42.

1992) (1788).

EDMUND BuRKE, REFLECTIONS OF THE FRENCH REVOLUTION AND OTHER EssAYs (E.P. Dutton

at

345, 352.

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defining and describing women's limitations in public and private life in short, declarative sentences full of fury at both men and women. Wollstonecraft seems to ask female readers, "Have you no integrity, no sense of self?" as she regales against their coquetry and submissiveness to men and their general irresponsibility toward themselves, their children, and society. Another Wollstonecraft contribution was her emphasis on women's health, promoting exercise of body and mind. Her predecessors made similar arguments for women's education, against the legal disabilities of marriage, and against women's lack of participation in politics, but only Wollstonecraft argued that women should be more active physically and more knowledgeable about health, anatomy, and medicine. She also was a precursor to the discussion of violence against women. In this area, she was almost two centuries ahead of her time: "The being who patiently endures injustice, and silently bears insults, will soon become unjust, or unable to discern right from wrong .... Nature never dictated such insincerity;-and, though prudence of this sort be termed a virtue, morality becomes vague when any part is supposed to rest on falsehood." 44 Although Wollstonecraft agreed with Rousseau on his rights-of-man theory, his views on women incensed her. Hobbes and Locke had argued that the rights-of-man theory encompassed woman. Rousseau, on the other hand, followed the traditional, paternalistic line of thought: "In the family, it is clear, for several reasons which lie in its very nature, that the father ought to command." 45 Later, in his book, Emile, he forcefully asserted the common view that woman's purpose in life was to serve and entertain men. Wollstonecraft devoted an entire chapter to Rousseau's idea that the education of women should be always relative to ... men. To please, to be useful to [them), ... to educate [them] when young, and take care of [them] when grown up, to advise, to console [them]; to render [their) lives easy and agreeable: these are the duties of women at all times. 46

Wollstonecraft dismissed Rousseau's views as nonsense while strongly criticizing women who taught their daughters, and practiced obedience to, such views. Meanwhile, in America, Abigail Adams was expressing similar ideas. A respectable married woman and wife of an early president of the United States, Adams is portrayed indulgently by historians for her "don't forget the

44. 45.

46.

WOLLSTONECRAFT, supra note 7, at 105. JEAN-JACQUES RoussEAu, A Discourse on Political Economy, in THE SoCJAL CoNTRACT AND D1scouRsEs (G.D.H. Cole trans., 1913), reprinted in part in H1sTORY OF IDEAS ON WOMAN: A SouRcE BooK 117, 119 (Rosemary Agonito ed., 1977) [hereinafter H1sTORY OF IDEAS ON WOMAN]. WOLLSTONECRAFT, supra note 7, at 101 (citing 3 JEAN-JACQUES ROUSSEAU, EMILIUS (A TREATISE OF foUCATION) 181 (1768)).

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ladies" letter to husband John while he was off helping draft the new country's constitution. Do not put such unlimited power in the hands of the husbands. Remember all men would be tyrants if they could. If particular care and attention is not paid to the ladies we are determine [sic] to foment a rebellion, and will not hold ourselves bound by any law in which we have had no voice, or representation. 47

These are distinctly personal political sentiments based on women's experience. What most historians ignqre is that this letter was only one example of her outspoken irritation at the legal constraints on women. In other letters, Adams lamented the fact that, although she managed the farm and other family enterprises while her husband was off on political ventures, she could not make contracts or sell any of their property without his signature. Adams was also concerned about women's education, lamenting her own lack thereof, and inquiring about Macaulay in correspondence with an English cousin. 48 The pleas of Abigail Adams and other women did not move male political leaders. Women were not considered citizens in the new US Constitution. On the European continent, the Allgemeines Landrecht of 1794 and the Napoleonic legal code of 1804 declared married women legally subordinate. 49 Yet, in 1808, Charles Fourier of France, whom some have called the inventor of feminism, asserted: As a general thesis: Social progress and historic changes occur by virtue of the progress of women toward liberty, and decadence of the social order occurs as the result of a decrease in the liberty of women .... [Tl he extension of women's privileges is the general principle for all social progress. 50

Fourier's ideas found few adherents. In 1832, the English Reform Act, in extending voting rights, limited those rights to "male persons." 51 However, by the end of the eighteenth century, strong feminist arguments were being made on both sides of the Atlantic, although no major social or political women's organization existed to promote feminist views except that of education. Before organizing for political purposes, women articulated their experience and ideas through written publications, and only gradually broke the tradition that good women did not address public audiences. A new political movement, the abolition of slavery, gave women

47.

See

ALICE Rossi, THE FEM1N1sT PAPERS: FRoM ADAMS TO DE Bl'Auvo1R

BOOTH, WOMEN OF

48. 49. 50. 51.

'76,

at

89 (1973).

PHYLLIS LEE LEVIN, ABIGAIL ADAMS: A BIOGRAPHY Bm

&

OFFEN,

supra

note

42,

at

37-41.

(1987).

Id. at 41. English Reform Act of 1832, 2 & 3 Will., ch. 45.

10-11 (1973);

SALLY SMITH

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experience in organizing and moved them into the political arena and onto public platforms.

VI. MARRIAGE AND CHILDREN While women's rights in the public arena received some attention, it was discrimination in the private sphere that was the more compelling issue. In the 1830s, the Caroline Norton case in England captured public attention. 52 A member of the well-placed Sheridan family, Caroline married George Norton, a lawyer and member of Parliament, only to find that he was a brutal drunk who expected her earnings to support the new family. A writer and magazine editor whose income, under law, belonged to her husband, Norton refused to be quiet, as women of her time were expected to do, about her frequent beatings at his hands. Abjuring feminism and using her social contacts, Caroline Norton argued for justice in marriage, putting her case before the public when the couple separated and her husband filed for divorce and took the children. The case generated immense publicity because of the Nortons' social standing. Like all other English women, she could neither legally appear in court nor be represented. A jury disallowed the divorce and, under law, Norton's husband retained custody of the children. This drove Caroline to a study of English law and cases similar to hers. She not only wrote and distributed a pamphlet, The Separation of Mother and Child by the Law of Custody of Infants Considered, 53 in 1837 to Members of Parliament and to the public, but she also got the attention of a young barrister interested in child custody cases. As a result, in 1839, Parliament passed an infant custody reform bill allowing children under seven years of age to remain with their mother if she was of good character and the Lord Chancellor agreed. This, however, was not the end of the matter for Caroline. George next sued for access to her trust monies and other inheritances to pay his debts. She contracted with him, assuring him an allowance if he gave her a legal separation, forgetting that as a woman she had no legal right to contract. Although she was allowed in court as a witness this time, she lost the case. Again, her response was to go public, achieving immense notoriety. In 1854, she published English Laws for Women in the 19th Century. 54 In a private letter, Norton, while disavowing feminism, admitted that she was

52. 53. 54.

See generally MARGARET FORSTER, 1939, at 15-52 (1984). See id. See id. at 46.

SIGNIFICANT SISTERS: THE GRASSROOTS OF ACTIVE FEMINISM

1839-

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seen "as a cross 'between a barn actress and a Mary Wollstonecraft."' 55 At this point, an avowed feminist, Barbara Leigh-Smith (a.k.a. Barbara Bodichon), brought out her own pamphlet on women and the law in England and circulated a women's petition drive for reform of the laws regarding married women, obtaining more than twenty thousand signatures. In 1857, the British Parliament passed an omnibus bill that allowed wives to directly inherit and bequeath property; permitted a wife who had been deserted by her husband to keep her earnings; empowered courts to direct payments for separate maintenance; and gave a separated wife the right to sue, be sued, and make contracts. 56 Only in 1882, with the Married Women's Property Act, 57 did married women achieve the same rights as unmarried women. Almost as if to prove the point that women-and especially married women-had little power either in the public sphere or in the home, it took a distinguished Englishman and member of Parliament, John Stuart Mill, to put the question of marriage on the international map. His 1869 essay, The Subjection of Women, 58 drew tremendous attention in England and was almost immediately translated and distributed throughout Europe and the United States. Susan Bell and Karen Offen, in Women, the Family and Freedom: The Debate in Documents, argue that Mill's essay "forced thinkers to grapple with fundamental issues of political and social theory." 59 Mill argued that men took contradictory positions by believing that women's "natural vocation" is that of wife and mother, while also believing that women must be forced or controlled in order that they engage in this natural vocation. If natural, why was force necessary? Mill thought too many men were afraid of equality in marriage. In that case, he argued, men should never have allowed women "to receive a literary education. Women who read, much more women who write, are, in the existing constitution of things, a contradiction and a disturbing element.... " 60 In his essay, Mill argued that marriage should be thought of as a voluntary association, a contract between equals similar to any business partnership. The partners could be assumed to settle issues of control

55. 56.

57. 58. 59. 60.

See id. See, e.g., id. at 47, 48, 51; Bm AND OmN, supra note 42, at 22 (highlighting the Divorce Act of 1857, the Married Women's Property Act of 1870, and its successor act of 1882, three acts that changed the legal position of married women in England); 4 A H1sTORY m WOMEN IN THE WEST: EMERGING FEMINISM FROM REVOLUTION m WORLD WAR 97-113 (Georges Duby & Michelle Perrot general eds., Genevieve Fraisse & Michelle Perrot eds., 1993). Married Woman's Property Act of 1882, 45 & 46 Viet., ch. 75. See MILL, supra note 3. BELL & OFFEN, supra note 42, at 392. MILL, supra note 3, reprinted in part in HISTORY OF IDEAS ON WOMAN, supra note 45, at 225,

243.

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amicably, each taking those responsibilities at which they were most efficient to perform. He also argued that it was in the interests of children and of society that equal rights within the family be the basis of marriage, otherwise, the family would become a school of despotism [when it ought to be] the real school of the virtues of freedom .... The moral regeneration of mankind will only really commence, when the most fundamental of the social relations is placed under the rule of equal justice, and when human beings learn to cultivate their strongest sympathy with an equal in rights and in cultivation. 61

Mill's arguments were exactly what an incipient international women's movement needed. Bell and Offen point out that Mill's essay, and the ferment it caused, were significant in mobilizing women to push for legal, economic, educational, and political rights in virtually every country in Europe. 62 Yet, it was not until 1923 that English women gained equal rights in divorce, and it took fifty more years, until 1973, before Parliament allowed English mothers to have legal custody of children equally with fathers.

VII. THE CONTRIBUTION OF NINETEENTH-CENTURY WOMEN WRITERS Denied direct access to the world of politics by custom-it was unseemly for women to speak in public-and subordinate under law, many English, French, and American women took to writing literature and political commentary as a means of intruding on the public sphere and, not incidentally, like de Pizan and Wollstonecraft, as a means of economic independence. During the nineteenth century, numerous women writers became noted literary figures, often using the novel to express political sentiments. According to Ellen Moers in Literary Women, these writers gave voice, directly and indirectly, to the feelings and aspirations of women. 63 They pitted the conservative, traditional woman against the feminist through literature and indirectly encouraged feminist views in many of their readers. As Wollstonecraft before them, they became spokeswomen for the underprivileged, whether slaves, factory workers, the poor, or women. Jane Austen and Charlotte Bronte are now the best known novelists of this period, but Fanny Burney of England and Madame de Stael of France were among the early popular writers who described the world from a

61.

62. 63.

BELL & OmN, supra note 42, 398-99. Id. at 362. Id. at 28.

231

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woman's perspective. Much more famous and widely read during this time was a novel not about women, but about slavery. Harriet Beecher Stowe's Uncle Tom's Cabin brought her to international attention. 64 The millions of copies sold not only helped her family survive economically, but contributed to the US Civil War and a change in public policy. What is not mentioned by most literary historians is that novelist George Eliot not only portrayed girls' lives as stifling, but she also was so moved by Harriet Beecher Stowe's portrayal of slavery that she confessed in a letter to Stowe that she "felt urged to treat Jews with such sympathy and understanding as my nature and knowledge could attain to," 65 which resulted in her novel, Daniel Deronda. 66 Mrs. Gaskell's Mary Barton, 67 published in 1848, is, according to Moers, the earliest, most notable novel about factory workers, although it was not the first written by a woman on this subject. 68 That distinction belongs to the aforementioned Caroline Norton, who, left in penury by her dissolute and violent husband, published A Voice from the Factories in 1836 and The Child of the Islands on child labor in 1845. 69 Another English writer of this period was Harriet Martineau, wellknown for her writings on political economy and one of many European female writers to tour the United States and write-along with Francis Wright and Frances Trollope, Anthony Trollope's mother-about conditions in the United States. During the 1820s and 1830s, Francis Wright became notorious for espousing women's and worker's rights, anti-slavery sentiments, free thought, and public education for both girls and boys. An intimate of General Lafayette of France, Wright's personal life and radical ideas made her persona non grata, like many other women before and after her whose non-traditional personal lives have been denigrated in an attempt to lessen the impact of their ideas on the public mind. One of the things that interested Wright, as it did de Tocqueville in his Democracy in America,7° was the position of American women as pragmatic, thinking beings, who knew, or learned, how to organize-a requirement for survival on the frontier. Another woman, also writing under a man's name, was George Sand of

64.

HARRIETT BEECHER STOWE, UNCLE ToM's CABIN, OR L1FE AMONG THE LowLY (Macmillan Publ'g Co.

1994) (1852).

65. 66. 67.

MoERs, supra note 32, at 39 (quoting Eliot). GEORGE EuoT, DANIEL DERONDA (Penguin Books 1986) (1876). EuZABETH CLEGHORN GASKELL, MARY BARTON: A TALE m MANCHESTER L1FE (Oxford Univ. Press

68. 69. 70.

MoERs,

1987) (1848).

supra note 32, at 23. See id. at 23.

ALEx1s DE TOCQUEVILLE, DEMOCRACY IN AMERICA (J.P. Mayer & Max Lerner eds. & George Lawrence trans., Harper & Row 1966) (1838).

232

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France who achieved international fame, not only for the proletarian political views expressed in her numerous novels, but also for her life of political activism and defiance of social mores. Sand is often remembered as a woman who dressed in men's clothing in order to move more freely around Paris. Widely recognized as the Muse of the 1848 Revolution, she lived out her beliefs. Defying convention, she separated from and divorced her husband; lived with a series of notable men without marriage; demanded custody of her children, inheritance, and property; earned her living by writing while expressing revolutionary thoughts; and became a role model-albeit, a highly controversial one-for women as well as men. She also became one of her generation's most popular and prolific writers, gaining praise from peers such as Dostoyevsky, Turgenev, Henry James, Walt Whitman, and, not incidentally, John Stuart Mill. 71 Perhaps as important, in terms of women's human rights, as the writings and ideas of the noted women is the interaction between the writers and female activists. In today's parlance, this would be called "networking across international borders." Sand was beleagured at times by visitors. Margaret Fuller, American journalist and author of Woman in the Nineteenth Century,7 2 enroute to Italy to cover its independence movement, was only one of many who called upon Sand. By this time, more women were traveling internationally. Flora Tristan, Sand's contemporary, went to Peru in an attempt to claim her father's inheritance, and then came home to write Peregrinations d'une paria 1833-34, followed by Promenades de Landres in 1840, and later, in 1846, L'Emancipation de la Femme ou la testament de la

Paria. 73 Networking among women who had attracted public attention was taking place, not only across international boundaries, but within borders, too. According to Moers, George Eliot knew Barbara Leigh-Smith (founder of the Association for Promoting the Employment of Women); Mrs. Gaskell knew Bessie Parkes; and Charlotte Bronte knew Mary Taylor (early settler and businesswoman of New Zealand), who wrote home ... denouncing the author of Shirley as "coward" and "traitor" for the hesitant ambivalence [Miss Taylor] sensed in Charlotte Bronte's attitude toward work for women. 74

Ernestine Rose is a prime example of the networking that took place between European and American women who became women's rights

71. 72. 73. 74.

JOSEPH BARRY, INFAMOUS WOMAN: THE LIFE m GEORGE SAND at xiv (1978). MARGARET FuuER, WoMAN 1N THE 19TH CENTURY (Univ. of S.C. Press 1980) (1845). See MoERs, supra note 32, at 20-22. See also id. at 316-17 (for a list of Flora Tristan's publications). Id. at 19.

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233 871

activists. Rose, like many others, became interested and active in a variety of progressive movements and the object of a great deal of publicity in her day. Born in Poland, she escaped an arranged marriage and, in court, defended her inheritance claim. She later emigrated to Germany, where she supported herself by selling her own invention, a household deodorant; moved to Paris during the 1830 revolution; and subsequently moved to England, where she became associated with Robert Owen and other reformers. By 1840, she and her English husband moved to the United States where Rose lobbied for passage of a married women's property act in New York. The legislative act allowed women to hold property in their own names and be legal guardians of their children. A forceful orator and leader in the numerous state and national women's rights conventions held in the eastern United States between 1850 and the onset of the US Civil War, Rose kept in touch with European women working on women's rights issues. She often used the term "human rights" in her speeches and in at least one instance sponsored a resolution stating that "by human rights we mean natural rights." 75 Women leaders on both sides of the Atlantic were not deterred by resistance to their ideas. At the 1853 New York City Women's Rights Convention, Lucretia Mott, discussed later, introduced Mathilde Francesca Anneke, editor of Die Frauenzeitung, who fled Germany when her husband was tried for treason after supporting the 1848 revolutionary movement. Rose was Anneke's translator, although translation services were not needed when an unruly mob entered the hall and brought the meeting to a haltnot an uncommon event for women's rights meetings. Before the meeting was disrupted, however, the convention had adopted a resolution that stated that their movement was "not of America only" and had formed a committee to communicate with women of "Great Britain and the Continent of Europe." Rose, who was made a member of the committee, was also active in peace, free-thought, and social reform movements and kept in touch with European feminists, reading letters and other communications from them at other women's rights conventions. 76 Although little of women's writings or their leadership in Eastern and Southern nations during the nineteenth century was common knowledge in the Western world, in 1905, "Sultana's Dream," a patently feminist story, was published in the Indian Ladies Magazine by Rokeya Sakhawat Hossain. 77 It described, in good humor, a world in which men's and women's positions

75. 76. 77.

YURI SuHL, ERNESTINE

Id.

at

L.

RosE AND THE BATTLE FOR HUMAN RIGHTS

145--48.

149 (1959).

RoKEYA SAKHAWAT HOSSAIN, SULTANA'S DREAM AND SELECTIONS FROM THE SECLUDED ONES (Roushan Jahan ed.

&

trans., Feminist Press

1988) (1905 & 1928-1930).

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were reversed and noted the lack of women's education and the strictures of the veil. 78

VIII. ORGANIZING FOR POLITICAL ACTIONFROM ANTI-SLAVERY TO WOMEN'S RIGHTS While Europe produced most of the writers who depicted women's experiences, organizing for political purposes was the major contribution of American women to the development of women's human rights. Organizing, as pointed out by de Tocqueville, was a necessity in America. Pioneers in a new land had to organize to survive, especially those who settled the northern sections of the United States where the winters are severe. It was the abolition of slavery-and later the civil rights movement-that provided the impetus for US women to organize to eliminate discrimination and promote women's rights just as the French and American revolutions had contributed to Wollstonecraft's and Abigail Adams' thinking. Two sisters from the slave-owning South of the United States turned their experiences with slavery first into anti-slavery advocacy and then to advocacy for women's rights. Sarah Grimke, daughter of a leading South Carolina judge and political activist, became deeply frustrated by her family's refusal to allow her to study law with her brother. She had hated slavery from childhood when she was severely reprimanded for secretly teaching her own slave servant/companion to read, an illegal act. Refusing marriage and the traditional life of a Southern lady, she moved to Philadelphia after her father's death and later was joined by her younger sister Angelina. Both found a measure of personal freedom in Quaker society, but soon found even the Quakers and male abolitionists too conservative. As agents for the American Anti-Slavery Society, they were placed in charge of organizing women. Later, Angelina's 1836 anti-slavery pamphlet, An Appeal to the Christian Women of the South,7 9 brought her to national attention. Angelina frequently spoke in public on the abolition of slavery and was often heckled by unruly mobs-at one such speech, a mob burned the new Philadelphia hall in which she spoke to the ground. According to Lerner, "the Grimke sisters [came] to represent in the public mind the fusion of abolition and woman's rights . . . [and] precipitated an ideological crisis among reformers." 80 Like Anne Hutchinson before them, Sarah and Angelina refused to be demeaned by religious

78. 79. BO.

See id.

E. GRIMKE, AN APPEAL TO THE CHRISTIAN (1836). See generally GERDA LERNER, THE GRIMKE See LERNER, supra note 79, at 183. ANGELINA

WOMEN OF THE Sourn (Arno Press S1snRs FROM Sourn CAROLINA

(1967).

1969)

235

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leaders who resented their interference with doctrine, their organizing of women parishioners, and their daring to speak to audiences of both sexes. Sarah Grimke's incisive Letters on the Equality of the Sexes, 81 issued in response to a Pastoral Letter to Congregational Churches, referred to Cotton Mather and witchcraft, a reference to Hutchinson's fate; demanded equality in education and equal pay for equal work; and drew analogies between women's lives and those of the slaves. An intellectual far ahead of her time, Sarah Grimke used language in an essay on marriage similar to that used in the 1993 world conference on human rights: "Human rights are not based upon sex, color, capacity or condition. They are universal, inalienable and eternal, and none but despots will deny to woman that supreme sovereignty over her own person and conduct which Law concedes to man." 82 Action at the 1840 World Anti-Slavery Conference in London spurred two women to organize. Lucretia Mott, a Pennsylvania Quaker, who reputedly kept a copy of Wollstonecraft's book in the foot of her babies' cradle, was an organizer of the Philadelphia Female Anti-Slavery Society, consisting of black and white members. Mott, with her husband, attended the 1840 World Anti-Slavery Conference in London, as did newly-married Elizabeth Cady Stanton. Upon reaching London, they discovered they were barred from participating in the conference despite all their anti-slavery organizing at home-women at the World Anti-Slavery Conference were only allowed to listen from behind a balcony curtain. Although some male delegates-not including Mrs. Stanton's new husband-argued in favor of women's participation, the ban remained. This manifest discrimination in a cause dedicated to freeing individuals from bondage shocked Mott and Stanton into action. Earlier, Mott, as a school teacher, had unavailingly protested against male and female pay differentials, while Stanton had complained to her father, a lawyer and judge, about women's legal subordination. While in London, the younger Stanton, a rebel by nature, found Mott "a suitable female role model and a willing mentor." 83 Mott told Stanton "of Mary Wollstonecraft, her social theories, and her demands of equality for women." 84 In London, the two women decided to organize a women's rights meeting when they returned to America. It took eight years before their idea came to fruition. Family duties, abolition activities, Stanton's child-bearing, and limited means of travel constrained both women, although they remained in correspondence.

81. 82. 83. 84.

SARAH M. GRIMKE, LETTERS ON THE EQUALITY OF THE SEXES AND OTHER EssAYS (Elizabeth Ann Bartlett ed., Yale Univ. Press 1988). Sarah M. Grimke, Marriage, reprinted in part in GERDA LERNER, THE FEMALE EXPERIENCE: AN AMERICAN DOCUMENTARY 89, 89 (1977). EusABETH GRIFFITH, IN HER OwN RIGHT: THE L1FE OF ELIZABETH CADY STANTON 38 (1984). Id. at 38 (quoting Stanton).

236

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In 1848, when Mott was visiting upstate New York, Stanton and Mott called their now-historic Seneca Falls meeting. By 1848, a strong foundation of thought and advocacy for women's rights had been built, but it had not won public favor. Most of the principles that would appear a hundred years later in the Universal Declaration and the Women's Convention-the rights to education; to employment outside the home with wages paid directly to the woman; to custody of their children; to hold and inherit property; to contract and be represented in court; and to participate in the world of public affairs-already had been espoused. What was required was to put these concepts in a theoretical framework. The framework, in addition to demanding the right to vote, organizing women, and giving women a different vision of the world, was Stanton's contribution. She had spent the eight years between meeting Mott and calling the 1848 convention reading and studying while raising her children. In the Declaration of Sentiments that Stanton wrote for the 1848 meeting, she expressed strong resentment of the fact that, throughout history, men had established "an absolute tyranny" over women. 85 Women were required to abide by laws they had no hand in making, and were thereby deprived, viewed "if married, in the eye of the law, [as] civilly dead." 86 Stanton wrote that, without rights to property or to the wages they earned, women become "morally irresponsible in marriage, can be chastised by the husband, are discriminated against in the laws of divorce and, if single and the owner of property, taxed to support a government which recognizes her only when her property can be made profitable [for the government] .... " 87 Kept from most profitable employments and professions such as law and medicine, she is paid low wages, when employed, and denied good education, with colleges not open to her. Thus, her confidence is destroyed, her self-respect lessened, and she is subject to a different code of morals, all of which, Stanton continued, made her willing to lead a dependent and abject life, depriving her of her citizenship. She concluded with a prophecy and call to action: "We shall employ agents, circulate tracts, petition the State and National legislatures, and endeavor to enlist the pulpit and the press in our behalf [and] hope this Convention will be followed by a series of Conventions embracing every party of the country." 88 The resolutions adopted at this historic meeting echoed sentiments expressed by earlier feminists and were reminiscent of Olympe de Gouges'

85.

86. 87.

88.

MARI Jo & PAUL BuHLE, THE CONCISE H1sTORY OF WOMAN SUFFRAGE 94 (1978) (reprinting Stanton's Declaration of Sentiments in toto).

See id. See id. at 95. Id.

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1791 Declaration of the Rights of Woman and Citizen. 89 Whether Stanton, a well-read intellectual, knew of de Gouges' work is unclear. What is known is that the 1848 meeting was attended by many of the nation's leading reformers-black and white-and received extensive, primarily negative, publicity. Although her resolution on women's suffrage-the only resolution not passed unanimously-has attracted the most attention from historians, feminist and non-feminist alike, its significance is sometimes over-estimated. "The right to vote is an empty right if power within the home resides in the male," Marsha Freeman of the International Women's Rights Action Watch correctly asserts. 90 In its time, however, the call for the right to vote was for the legal right to participate in the public sphere. Suffrage was the metaphor for equality in public life, for full citizenship. Public discussion of the husband's right to chastise or beat his wife, perhaps, had greater contemporary impact, although it was not discussed widely, or used as an organizing tool, until the late twentieth century when violence against women became an international organizing effort and united women of all classes and nationalities. What was important in 1848, and is still important today, is the full legal and de facto capacity of women to act as free, independent, equally empowered citizens in both the private and public spheres. It was this 1848 call to action on all fronts-public and private-that spurred women's organizing nationally, and then internationally, and ultimately led, not only to women achieving the right to vote, but to their increasing political activity. A widely publicized series of state and national women's rights conventions, interrupted by the Civil War, gathered converts to every issue in the Declaration and, after intense organizational efforts, ultimately led to American women finally achieving the vote in 1920. 91 These early conventions could be called a first wave of organized consciousness-raising because they brought a wide range of women's issues to public attention and spurred individuals and groups of women to action on many fronts. Another important step was the struggle of women to enter acknowledged professions such as law, medicine, and science. Among the most notable early trail-blazers were Elizabeth Blackwell of the United States and Florence Nightingale of England, who both broke barriers for women in medicine. Blackwell is recognized for her fight to enter medical school and become the first certified female doctor, while Nightingale is remembered not only for her pioneering efforts in modern nursing, but also for her research and advocacy in the field of public health. In the same period, 89. 90. 91.

Bm & OmN, supra note 42, at 98, 104-09. Comments in a conversation with the author. U.S. CoNsT. amend. XIX.

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women also broke the college entrance barrier. Lucy Stone, the first American woman to attend college, is known for her leadership in the suffrage movement as well as her insistence on keeping her own name upon marriage and her strong advocacy of education of girls and women. The resistance to women's participation in public life as professionals in the United States is illustrated by an 1870 decision of the State of Illinois' Supreme Court refusing Myra Bradwell admission to the bar on the grounds that God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply and execute the laws .... This step, if taken by us, would mean that ... every civil office in this State may be filled by women ... governors, judges and sheriffs. This we are not yet prepared to hold. 92

However, in 1874, the Illinois legislature passed legislation preventing discrimination in bar admissions on the basis of sex, 93 and in 1879, the US Supreme Court allowed Belva Lockwood to appear before it. 94 In spite of these victories, it took until 1973, when the US Congress adopted Title IX of the Education Amendments, 95 which, among other things, was designed to eliminate discrimination against women in education, to open US law schools to more than a small quota of women, and to encourage schoolgirls to participate in sports.

IX. ORGANIZING INTERNATIONALLY Women's organizing was not limited to the United States, nor were women's suffrage leaders the only leaders organizing women for political action. Although the Women's Christian Temperance Union (WCTU) is remembered, often jokingly, for its crusade against the evils of alcohol, its primary emphasis, under the leadership of Frances Willard, was local political action in the name of motherhood and home. Willard's "do everything" policy for local WCTU units encouraged women to improve their communities. Many units established kindergartens, libraries, and other community institutions. This local activity brought new recruits to the suffrage movement. Later, Willard formed an international WCTU with units in other countries, including Japan. 96 In March 1888, forty years after the Seneca Falls meeting, an lnterna-

92. 93. 94. 95. 96.

ELEANOR fLEXNER, CENTURY OF STRUGGLE: THE WOMAN'S RIGHTS MOVEMENT IN THE UNITED STATES

21 (1974). See id. at 121. Id. 20 U.S.C. § 1681 et seq. RUTH BORDIN, FRANCES WILLARD:

A

BIOGRAPHY

(1986).

120-

239

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tional Council of Women meeting, organized by Stanton and her friend and colleague, Susan B. Anthony, was held in Washington, DC. Anthony had been active in the temperance movement and proved herself to be the consummate organizer, while Stanton was a theoretical politician. The International Council of Women meeting was cosponsored by the WCTU. In addition to delegates from England, France, Norway, Finland, Denmark, India, and Canada, representatives from over fifty US women's organizations attended. 97 This meeting was not the first international organization of women; by 1888, Marie Goegg of Switzerland had formed an International Association of Women, an International Women's Rights Conference had been held in Paris, and the World Young Women's Christian Association (WYWCA) and the World WCTU had been formed. In the early part of the twentieth century, the International Conference of Socialist Women was formed under the leadership of Clara Zetkin. This group proposed what later became International Women's Day. Also, in Russia, Alexandra Kollantai, who concentrated on organizing employed women, built upon and defined the feminist movement. 98 With headquarters in Zurich, the International Council of Women promoted the formation of national councils to work on social and economic questions. Although Anthony and Willard were extremely pleased that more conservative women were joining the women's rights movement, Stanton and others had a broader, more liberal or progressive vision. By this time, Stanton was spending more and more time in Europe, primarily England and France. Although suffrage remained a primary issue for her, in perhaps the most significant speech of her life, made before the US Senate Committee on Woman Suffrage, she called on women to be self-reliant, independent beings whose birthright was "self-sovereignty." 99 At the age of seventy-six, Stanton argued the essential basis for women's human rights, the sovereignty of the individual: No matter how much women prefer to lean, to be protected and supported, nor how much men prefer to have them do so, they must make the voyage of life alone . . . . The strongest reason why we ask for woman a voice in the government under which she lives; in the religion she is asked to believe; equality in social life, where she is the chief factor; a place in the trades and professions, where she may earn her bread, is because of her birthright to selfsovereignty; because, as an individual, she must rely on herself. 100 97. 98. 99. 100.

GRIFFITH, supra note 83, at 193. See Margaret E. Galey, Forerunners in Women's Quest for Partnership, in WOMEN, PouT1cs, AND THE UNITED NATIONS 1 (Anne Winslow ed., 1995); R1cHARD STITES, THE WoMEN's LIBERATION MOVEMENT IN RUSSIA (1978). GRIFFITH, supra note 83, at 203, 204. Id. at 203 (indicating that the full text of the speech, The Solitude of Self, can be found in THE H1srnRY OF WoMAN SuFFRAGE 189-91 (AYER co. 1985) (Elizabeth Cady Stanton et al. eds., 1881 )).

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Achieving that birthright required organizing internationally. Women's suffrage, at the end of the nineteenth century and the beginning of the twentieth, like the violence against women issue at the end of the twentieth century, became the most visible issue in the feminist movement. Less visible were other issues supported by a variety of women's organizations, ranging from those concentrating on meeting short-term social welfare needs to the more political organizations that were demanding the right to vote. In 1902, delegates from ten countries-the United States, England, Russia, Norway, Germany, Sweden, Turkey, Australia, Chile, and Canadaattended an International Woman Suffrage Conference held in Washington, DC as part of the National American Women Suffrage Association's annual convention. 101 By this time, New Zealand and Australia had given women the vote. 102 In 1904, meeting in Berlin, women active in national suffrage campaigns formed the International Woman Suffrage Alliance (IWSA) and elected as president Carrie Chapman Catt, a second-generation US suffragist whose talent was organization. Although suffrage was its original focus, the group understood the importance of setting end goals and developing means to achieve them. Suffrage was a means, not an end. Effecting changes in law and policy required lobbying formal political bodies, garnering political support, and continually educating both women and men about women's concerns. The principles on which IWSA was established were precursors to ideas that would later find their way into the Convention: 1. That men and women are born equally free and independent members of the human race; equally endowed with intelligence and ability, and equally entitled to the free exercise of their individual rights and liberty. 2. That the natural relation of the sexes is that of interdependence and cooperation, and that the repression of the rights and liberty of one sex inevitably works injury to the other.... 3. That in all lands, those laws, creeds, and customs which have tended to restrict women to a position of dependence; to discourage their education; to impede the development of their natural gifts, and to subordinate their individuality, have been based on false theories, and have produced an artificial and unjust relation of the sexes .... 4. That self-government in the home and the State is the inalienable right of every normal adult, and the refusal of this right to women has resulted in social, legal, and economic injustice to them, and has also intensified the existing economic disturbances throughout the world.

101. 102.

See ARNOLD WH1rncK, Seeid.at32.

WOMAN INTO CrnzEN

22, 31 (1979).

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5. That governments which impose taxes and laws upon their women citizens without giving them the right of consent or dissent . . . exercise a tyranny inconsistent with just government. 6. That the ballot is the only legal and permanent means of defending the rights to the "life, liberty and pursuit of happiness" pronounced inalienable by the American Declaration of Independence, and accepted as inalienable by all civilised nations. In any representative form of government, therefore, women should be vested with all political rights and privileges of electors. 103

These principles cleariy harken back to Wollstonecraft and the rights-ofman theory. The reference to the home is significant as are the terms "laws, creeds, and customs." These women were out to revolutionize relations between men and women and were determined that women should be full citizens. They had no intention of remaining subordinate and knew that marriage and the home were among the legal, as well as customary, means of maintaining women's subordination. In short, they were taking on the responsibilities of citizenship before they were legally equal citizens, concentrating on civil and political, as well as economic and social, rights. By 1904, when these principles were adopted at their Berlin conference, increasing numbers of women were employed outside the home as clerks and secretaries in offices and in industrial production. By the 1913 conference in Budapest, where twenty-four countries were represented, IWSA board members had traveled to all continents to survey the status of women. During the conference, the Alliance decided to admit to membership women from countries where suffrage was an impossible or impractical idea, but where a "woman's movement" was either necessary or underway. The Alliance also adopted its first non-suffrage resolution on the problem of "white slave traffic" (trafficking in women). 104 Interest in the "white slavery" issue continued and would occupy the minds of CSW members, eventually finding its way into the Women's Convention in the article on prostitution as

103. 104.

Id. at 31-32. See id. at 60. The Alliance was not the only organization that developed an interest in ending white slave traffic (trafficking in women). Following World War I, the Union Fram;:aise pour le Suffrage des Femmes invited women from Allied countries to help lobby against trafficking in women at the Paris Peace Conference. See id. at 70-71. Resolutions on "the moral, political and educational aspects of women's life" were presented to various commissions of the League of Nations. Id. at 71. The resolutions on moral status included the following objectives: 1. "To suppress the sale of women and children." 2. "To respect and apply the principle of woman's liberty to dispose of herself in marriage." 3. "To suppress the traffic in women, girls, and children of both sexes, and its corollary, the licensed house of ill fame." Id. See also NATALIE KAUFMAN HEVENER, INTERNATIONAL LAW AND THE STATUS m WOMEN 10-12, 78-102 (1983) (providing cites for international conventions relating to trafficking in women).

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well as in the section on marriage and family law requiring consent to marriage. 105 The Alliance was neither the first nor the only organization to address this issue. In Britain, Harriet Martineau had written on the subject in 1862, and Josephine Butler, president of the North of England Council for the Higher Education of Women from 1868 to 1873, was asked by male doctors to lead opposition to the cruel provisions regarding prostitutes in England's Contagious Diseases Act. 106 Under this legislation, prostitutes and women suspected of prostitution were required to submit to medical examinations for venereal disease to protect the health of soldiers and sailors. 107 During World War I, women's participation in the paid labor force increased exponentially, and, because the war prevented travel and diverted organized women to the war effort, most international women's activities ceased. However, in 1915, an International Congress of Women was held at the Hague in an effort to promote peace among the warring nations. Jane Addams of Hull House in Chicago, notable for her work in urban reform and a supporter of the suffrage movement, was chosen as president of the Hague conference. In 1919, the International League for Peace and Freedom was organized, reflecting many women's concerns for peace. 108 When the 1919 Paris Peace Conference was called, a French women's suffrage union invited a small group of feminist activists to Paris to discuss women's participation in the peace process. The group proposed to Wilson and Clemenceau that women's interests be heard at the peace conference and that women be allowed to participate as both delegates and employees of the League of Nations. The first to hear the group's views was the labor commission, before which the women proposed a forty-four hour work week, a minimum wage, and equal pay for women. Another presentation to the Commission of the League of Nations covered women's education, suffrage, trafficking in women, and improvement in marriage laws. 109 As a result of this lobbying, the League's Charter included provisions that League positions be open equally to women and men and workers have fair and humane employment conditions; also, the Charter mentioned the issue of trafficking in women and children. 110 Later IWSA members urged 105. 106. 107. 108.

CEDAW, supra note 2, arts. 6, 16. FoRsnR, supra note 52, at 169-71.

109. 110.

See WH1rncK, supra note 101, at 70-71. See id. at 72 (stating that

Id.

See 1 NorABLE AMERICAN WOMEN, 1607-1950, at 20 (Edward T. James ed., 1971) (providing section on Addams).

Article 7(3) of the Covenant states that "all positions under or in connection with the League, including the secretariat, shall be open equally to men and women"; while Article 23(a) is concerned "with fair and humane conditions of labour for men, women and children" and 23(c) with "the supervision over the execution of agreements with regard to the traffic in women and children.").

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the British War Office to send women police to Germany to assure that German girls were not abused by the occupying troops. All of the postwar activity resulted in the IWSA adopting a charter of women's rights at its 1920 conference that covered, in order of priority, political rights, personal rights, domestic rights, educational and economic rights, and moral rights. 111 Political rights included, not only suffrage, but equal recognition in legislative and administrative bodies, both nationally and internationally. Personal rights covered protection under laws against slavery and rights of married women to retain or change their nationality. Domestic rights revolved around marriage, with a married woman having the right to "the use and disposal of her own earnings and property, and that she should not be under the tutelage of her husband . . . . [T]he married mother should have the same rights over her children as the father." 112 Domestic rights also supported the concept that, as widows, women should be accorded guardianship of their children and "the right to maintenance by the State .... " 113 The final section stated that "a child born out of wedlock ... should have the same right to maintenance and education from the father ... as a legitimate child, and that an unmarried mother, during the period when she is incapacitated, should . . . have the right of being maintained by the father of her child." 114 The new charter of women's rights called for "no special regulations for women's work, different from regulations for men, ... [and] that laws relative to women as mothers should be so framed as not to handicap them in their economic position .... " 115 This was a harbinger of the argument over the protection of women workers that would continue into the 1980s. All of the provisions would eventually find their way into CSW resolutions and into the Women's Convention, though it would take over fifty years of advocacy and lengthy discussions within the CSW and the United Nations. Resolutions at the 1920 IWSA Geneva conference also called for an annual League of Nations women's conference and attention to the problems of venereal disease and prostitution. 116 By this time, twentyfive countries had granted women suffrage, but forward-looking women were already beyond suffrage, and onto a broader women's agenda. Too many historians, male and female alike, have overlooked the broader agenda.

111. 112. 113. 114. 115. 116.

See id. at 75-76 (reprinting the charter). Id. at 75. Id. Id. Id. at 76.

See id.

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X. BIRTH CONTROL, FAMILY PLANNING, AND WOMEN'S HEALTH What was not the subject of resolutions at the 1920 IWSA conference was birth control, which was presumably an issue too hot to handle publicly, though, it can be assumed, it was certainly discussed in private conversations at the convention. Birth control is at the very heart of male/female relationships, and of any society's future, and few other facets of life have the same emotional depth, as John Stuart Mill and others understood so well. Safe and effective birth control and related information, including information on abortion, threatens a system as old as human life. Just as suffrage was a metaphor for women's equality in public life, birth control meant a measure of equality in private life for sexually active women. Because of the deep emotions wrought by the issue of birth control and the few radicals, such as Emma Goldman, who publicly discussed birth control, it is understandable why birth control was not an issue on the 1920 IWSA agenda. It would take courage, leadership, time, and a great deal of organizing before birth control would become legal and its use widespread. As with so many other new issues, it was the radicals, those who first dare to speak out on an issue, who put this new issue into the realm of public discourse. Radicals serve an important political function. They make those who follow them, including traditional organizations that may take up the new cause, look more respectable. However, too often, it is the traditional groups that are recorded in history for accomplishments in a particular area or on a specific issue, when it was the radicals who first brought the matter to public attention. Europeans led the way in developing birth control devices and making the discussion and promotion of their use legal. Although the condom is thought to have originated in Egypt centuries ago, it was only named in the seventeenth century for an English doctor who provided sheaths made from sheep organs to members of the court of King Charles II of England as protection against venereal disease. In nineteenth-century England, Annie Besant and Charles Bradlaugh won a landmark case involving the right to write, publish, and discuss birth control publicly. 117 Later, in the 1880s, the diaphragm was developed in Germany. Information about it and its use spread quickly, although not without strong opposition. In 1873, the US Congress passed the Comstock Act, 118 which equated birth control information to pornography and made it illegal to mail, transport, or import into the United States any kind of birth control devices

117. 118.

See MARGARET SANGER, MARGARET SANGER: AN Aum010GRAPHY 127-28 (1938). CONTROL REv. 106 (1929) (for information on Besant). 20 u.s.c. § 1462.

See also 13 B1RTH

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or information. However, the dissemination of information with such importance to women could not be stopped. Emma Goldman, a Russianborn US immigrant and sometimes midwife, who was active in the labor movement, took up the cause. A brilliant lecturer, she was unafraid to speak about the issue, arguing that women had to free themselves from within, not simply through suffrage. 119 It was in the labor movement that Margaret Sanger, the preeminent name associated with the US birth control movement, met Goldman, who opened Sanger's mind to the impact birth control could have on women. 120 The fact that Goldman also preached "free love"-love and sexual intercourse without marriage-made her, and, in many ways, the birth control movement, anathema to many. 121 In 1916, Goldman, called "Red Emma" by much of the press, was arrested for lecturing on birth control in New York City and spent fifteen days in jail as a consequence. 122 Sanger's main concern was women's health and sexuality. She felt passionately that women, especially poor women, needed birth control information and devices for their own health and for that of their children. She had watched her mother die of tuberculosis after bearing eleven children, not uncommon for the time. As a nurse-midwife and labor movement activist, Sanger saw too many poor women at the mercy of their sexuality. In 1912, she began writing a series of articles on female sexuality and on venereal disease in a socialist weekly, but soon became distressed at the reaction of male labor leaders who did not share her passion. After traveling to Europe with her first husband and learning more about birth control, Sanger returned to the United States in 1914 and, later that year, published a small magazine called "The Woman Rebel" in which she "intended to challenge Comstock's prohibition of information about sexuality and contraception." 123 That same year, Goldman was doing a lecture tour around the United States and sold Sanger's magazine on her tour. 124 Prohibited by law from using the mails to distribute her magazine, it being considered too radical even by left-wingers, Sanger distributed it herself around New York. 125 In August of that year, she was arrested for writing and

119.

See

ELLEN CHESLER, WOMAN OF VALOR: MARGARET SANGER AND THE BIRTH CONTROL MOVEMENT IN

AMERICA

120.

See

85-86 (1992).

NOTABLE AMERICAN

WOMEN:

(Barbara Sicherman et al. eds.,

121. 122.

See MARIAN J. MORTON, See generally CANDACE

121; 2 1971). 123. 124. 125.

PERIOD: A

BIOGRAPHICAL

1980).

supra note 119, at 97. supra note 122, at 221-22. CHESLER, supra note 119, at 99. FALK,

DICTIONARY

623-27

(1992). (1984); MoRTON, supra note 57-59 (E.T. James et al. eds.,

EMMA GOLDMAN AND THE AMERICAN LEFT: "NowHERE AT HoME" FALK, LovE, ANARCHY AND EMMA GoLDMAN

NOTABLE AMERICAN WOMEN: A BIOGRAPHICAL DICTIONARY

CHESLER,

See See

THE MODERN

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distributing her magazine. Instead of preparing for trial, though, she wrote a pamphlet called Family Limitation 126 with specific birth control information and then escaped to Europe, where she met and became the lover of Havelock Ellis. In England, Sanger lectured before the Fabian Society and became acquainted with the ideas of Olive Schreiner, the South African novelist and activist, and Ellen Key of Sweden, both of whom promoted birth control and women's liberation, although neither were active suffragists. After visiting England and the Netherlands to learn more about contraception, Sanger opened a birth control advice center in New York that was promptly closed by the police. Despite her radical beginnings, the generation of enormous publicity regarding her activities eventually attracted wealthy women and medical doctors to her cause. Sanger and her supporters smuggled diaphragms into the United States, successfully challenged the Comstock Act and other restrictive laws in court, and established the American Birth Control League, the predecessor of Planned Parenthood Federation of America. Sanger later became involved in the international birth control movement and lived to see the US Supreme Court, in Griswold vs. Connecticut, 127 uphold contraception for married couples. Sanger was by no means alone in the campaign for birth control rights and recognition of women's health issues. In the Dominican Republic, Evangelina Rodriguez, an African/Dominican, became that country's first woman doctor after obtaining her medical degree in Paris in 1909. Upon returning to her native country, she combined a medical career with feminist activism, including assistance to poor children, support of women's suffrage, and promotion of birth control. In Sweden, Elise Otteson-Jensen founded the Swedish Association for Sex Education, promoted family planning, and later worked with Sanger on an international birth control conference. In Egypt, educator Zahia Marzouk helped organize a conference on population issues sponsored by the Egyptian medical association. At the conference, she defied tradition by delivering her own paper on the population issue at a time when women were prevented from speaking in public. Twehida Ben Sheik, a Tunisian woman, went to medical school in Paris and later started a family planning clinic in a Tunisian hospital and worked to make abortion legal in that country. 128 As Perdita Huston has noted in her book, Motherhood by Choice, 129 these pioneers in the birth control movement came from a variety of backgrounds, but,"[r]egardless of their social standing, they were insulted

126. 127. 128. 129.

MARGARET SANGER, FAMILY LIMITATION (5th ed. rev'd, n.d.) (1914), microformed on History of Women, Reel 962, No. 9989 (Research Publications). Griswold v. Connecticut, 381 U.S. 479 (1965). See PrnrnTA HusToN, MOTHERHOOD BY CH01cE: P10NEERs IN WoMEN's HEALTH AND FAMILY PLANNING 95-106 (1992).

Id.

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and threatened for speaking out, for mentioning human sexuality and advocating the right to voluntary motherhood .... [T]hey were an easy target for those who opposed change or women's rights. Theirs was a constant struggle to maintain honour and courage." 130 Each of these women followed the pattern of earlier feminists by becoming educated, defying tradition, organizing and informing their communities, and speaking out publicly. In short, they exercised leadership in the public sphere, helping to put women's health and reproductive issues on the international agenda. Between 1929 and 1935, the All India Women's Conference took up the birth control issue and, in 1935, "went on record in support of artificial contraception, making it the largest group in the world to have done so at the time." 131 In 1940, Eleanor Roosevelt, soon to be chair of the Human Rights Commission, declared herself publicly in favor of birth control. In spite of these gains, however, there were still setbacks. As late as 1959, US President Eisenhower rejected the Draper report that addressed the necessity of population planning in foreign aid. It took Helvi Sipila of Finland and other strong minded CSW delegates, including those from India, to put birth control on the UN agenda in the 1960s under the rubric of family planning. Still today, however, the abortion issue raises strong objections in many quarters.

XI. THE UNITED NATIONS AND ITS COMMISSION ON THE STATUS OF WOMEN By the time the United Nations was formed in 1945, women were deeply involved in the public sphere, primarily in nongovernmental organizations, but a number of countries had women among their delegations. The suffrage movement had been successful in thirty-one countries. Women's participation in the paid labor force during both world wars had been massive and never returned to prewar levels. Employed women in Europe and the United States had organized and were part of the international labor movement. The number of women's organizations had increased; these organizations advocated issues ranging from study and self-improvement to social welfare to suffrage, and many employed a variety of measures to draw attention to the causes. 132 Women from many countries also had

130. 131. 132.

Id. at 4. CHESLER, supra note 119, at 357. In the United States, a women's club movement, primarily dedicated to self-education and social welfare, had expanded across the country. See THEODORA PENNY MARTIN, THE SouND OF OuR OwN Vo1cEs: WOMEN'S STUDY CLUBS, 1860-1910 (1987); ANNE F1ROR Scon, NATURAL ALLIES: WOMEN'S ASSOCIATIONS IN AMERICAN HisTORY (1991). Social reformers such as

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gained extensive experience in lobbying government officials locally, nationally, and even internationally. The International Federation of Working Women (IFWW), for example, had lobbied the International Labor Organization (ILO) and achieved adoption of the 1919 conventions on maternity protection and night work for women. 133 An area where the women's organizations had not been successful, however, was in convincing the League of Nations, the predecessor to the United Nations, to take up the question of the nationality of married women. The work of women's organizations internationally came to fruition with the establishment of the United Nations. 134 Led by South American delegates, notably women from Brazil, Mexico, and the Dominican Republic, and with support from Indian and North American NGOs, the linkage between women's rights and human rights was effectively made in the UN Charter in its introduction and in four separate articles. 135 The equal rights of men and women clause in the UN Charter established a legal basis for the international struggle to affirm women's human rights. Although only eleven of the fifty-one nations represented in the 1946 UN General Assembly had women on their delegations, with the support of women's NGOs, women made their presence known. Early in 1946, MarieHelen LeFaucheux of France introduced an agenda item on the participation of women in UN conferences, which was adopted. 136 Brazil proposed establishing a status of women commission, but the proposal was strongly opposed by the US delegate, Virginia Gildersleeve, a founder of the International Federation of University Women. She argued the US position

133. 134. 135. 136.

Jane Addams, of Hull House in Chicago, had invented social work; Addams later became a force in urban affairs. See ALLEN F. DAv1s, AMERICAN HEROINE: THE L1FE AND LEGEND OF JANE ADDAMS (1973); JANE ADDAMS, JANE ADDAMS: A CENTENNIAL READER (1960); JANE ADDAMS, TwENTY YEARS AT HuLL-HousE (1914). US suffrage leaders ranged from the organizationally minded Susan B. Anthony and Carrie Chapman Catt to the more militant Alice Paul, all of whom were also active internationally. A similar range could be found in England, including the militant Pankhursts. See ELLEN CAROL DuBois, FEMINISM AND SuFFRAGE: THE EMERGENCE OF AN INDEPENDENT WOMEN'S MOVEMENT IN AMERICA 1848-1869 (1978); CARRIE CHAPMAN CATT & NETTIE ROGERS SHULER, WOMAN SUFFRAGE AND POLITICS: THE INNER STORY Of THE SUFFRAGE MOVEMENT (1970); INEZ HAYES GILLMORE, STORY OF ALICE PAUL AND THE NATIONAL WoMAN 1 S PARTY (1977); ANTONIA RAEBURN, THE SUFFRAGETTE VIEW (1976) (providing information on Pankhurst). See generally HEVENER, supra note 104, at 119, 67-77 (discussing the maternity convention and night work convention respectively). Margaret E. Galey, Women Find a Place, in WoMEN, POLrncs, AND THE UNITED NATIONS, supra note 98, at 11 . Four women signed the UN Charter in 1945, among them Minerva Bernardino of the Dominican Republic. Declaration on the Participation of Women in the Work of the United Nations: Report of the General Committee to the General Assembly, U.N. GAOR, 1st Sess., 29th plen. mtg., No. 30, at 527-35, U.N. Doc. N46 (1946).

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that such a commission would be discriminatory and that the human rights commission was able to deal with women's questions. Minerva Bernadino of the Dominican Republic suggested that a committee of the Commission on Human Rights be established to work on women's rights. The New Zealand chair of the Economic and Social Council (ECOSOC) Organization Committee took up the suggestion, and, soon thereafter, a Human Rights Sub-Commission on the Status of Women was established. Eleanor Roosevelt, the widow of President Franklin Roosevelt, who was named chair of the Human Rights Commission, is commonly reputed to be the impetus for the establishment of the CSW. This is an historical error. She actually shared the US/Gildersleeve view that the Human Rights Commission and its Sub-Commission on Women could be trusted to deal effectively with women's issues. She had, however, been a signatory, along with Jean McKenzie of New Zealand, Evdokia Uralova of the Soviet Union, and Ellen Wilkinson of Britain, to an "Open Letter to the Women of the World" calling on women to take a more active role in politics and government. 137 Mrs. Roosevelt's position against a separate women's commission was not sustained. Within a year, the Sub-Commission became a free standing commission, the current Commission on the Status of Women (CSW). Support for a full commission was led by the chair and vice-chair of the Sub-Commission as well as Bodil Begtrup of Denmark, Minerva Bernadina of the Dominican Republic, and Marie-Helen LeFaucheux of France. Bernardino had chaired the Inter-American Commission on Women; Begtrup had been active with the League of Nations on women's issues; and LeFaucheux had been a part of the French resistance movement. 138 These women knew how to organize and strategize, and they realized that a full commission was the only sure way to get their recommendations on women's rights directly to ECOSOC and the General Assembly. The Sub-Commission had proposed "four immediate tasks .... (1) the creation of a [UN] Secretariat office headed by a competent woman; (2) the conclusion of the worldwide survey of laws on women [originated under the League of Nations]; (3) the promotion of equal educational opportunity; and (4) a [world] women's conference." 139 Dropping the idea of a world conference, the women succeeded in obtaining Roosevelt's support, and, on 21 June 1946, ECOSOC authorized a free standing Commission on the Status of Women and requested the Commission report back in 1947. 140

137. 138. 139. 140.

See GALEY, supra note 134, at 11-12. Interview with Margaret E. Galey (23 June 1997). GALEY, supra note 134, at 13. See id. at 14.

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The purpose of the full commission was to promote women's rights in all fields of human endeavor. The object was to elevate the equal rights and human rights status of women, irrespective of nationality, race, language, or religion, in order to achieve equality with men in all fields of human enterprise and to eliminate all discrimination against women in statutory law, legal maxims or rules, or in interpretations of customary law. 141

Meanwhile, the UDHR was being drafted, and it is not without interest that the Council of Women and the YWCA were among the twenty-two NGOs who urged the United Nations to draft such a declaration. Commission members and female delegates were concerned that terms such as the "rights of man" would not be interpreted to specifically include women. Bodi! Begtrup, CSW Chair, stated in one meeting that the drafting of the UDHR "was of fundamental importance for women," and pointed out that because "sex equality was a right which had been acquired but recently, it would be necessary to emphasize it explicitly in certain Articles." 142 Later, she suggested the term "human beings" be substituted for the word "men." 143 Five days later, on 12 December, the wording about women was still an issue. Mrs. Mehta of India objected to the words "all men" and "brothers" fearing that "they might be interpreted to exclude women, and were out of date." 144 The working group drafting the Declaration adopted the idea of a footnote to Article 1 indicating that the word men referred to all human beings. 145 This legislative history clearly shows that the subject was debated and that the women in the drafting group made their point known. Ultimately, the ungendered term "everyone" was used extensively in the UDHR. The CSW reflected the work on women's rights that had gone on before in the United Nations and earlier within various international bodies and women's organizations. By 1951, as a result of a Commission initiative, the ILO adopted the Convention and Recommendation Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value 146 and 141. 142.

143. 144. 145. 146.

Margaret E. Galey, Promoting Nondiscrimination Against Women: The UN Commission on the Status of Women, 23 INr'L Sruo. Q. 276 (1979). Working Group on the Declaration of Human Rights, Summary Record of the Second Meeting, U.N. ESCOR, Comm'n on Hum. Rts., 2d Sess., U.N. Doc. E/CN.4/AC.2/SR.2 (1947). See also Johannes Morsink, Women's Rights in the Universal Declaration, 13 HuM. R1s. Q. 229 (1991 ). See Morsink, supra note 142, at 234. Working Group on the Declaration of Human Rights, Summary Report of the Thirtyfourth Meeting, U.N. ESCOR, Comm'n on Hum. Rts., 2d Sess., at 4, U.N. Doc. E/CN.4/ AC.2/SR.34 (1947). See Morsink, supra note 142, at 234. See id. Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (ILO No. Cl 00), adopted 29 June 1951 (entered into force 23 May 1953); Recommendation Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (ILO No. R90}, adopted 29 June 1951.

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later issued recommendations on women's right to employment opportunities, pensions, retirement, and social insurance. 147 By 1952, the CSW succeeded in having the Convention on Political Rights of Women 148 adopted-a direct result of the suffrage movement. Reflecting centuries of concern about the position of women in marriage, the Convention on the Nationality of Married Women was drafted and adopted by the General Assembly in 1957, 149 supplementing Article 15 of the UDHR. In 1962, the Commission's Convention on the Consent to Marriage, Minimum Age for Marriage and the Registration of Marriages was adopted. 15° CSW also worked with UNESCO on an equal education convention, adopted in 1960, 151 and promulgated recommendations on political and civic education, women's right to inherit property, a contentious issue that would surface again and again, and to equal treatment before the law. 152

XII. A DECLARATION ON ELIMINATING DISCRIMINATION AGAINST WOMEN Although the British Federation of Business and Professional Women had suggested to UN General Assembly President Spaak in 1946 that a UN convention on discrimination against women would be in order, it was not until 1963 that the first, tentative steps toward such a convention were undertaken. 153 In that year, a series of events put a new focus on women in the United Nations. A General Assembly resolution was adopted, introduced by developing and Soviet-bloc countries, calling for the CSW to draft a declaration on eliminating discrimination against women. 154 The resolution invited member states and "appropriate non-governmental organizations" to submit comments and proposals on principles that might be included in such a declaration. 155 Also, 1963 was the first year that the CSW

147. 148. 149. 150. 151. 152. 153. 154. 155.

See HEVENER, supra note 104. Convention on the Political Rights of Women, opened for signature 31 Mar. 1953, 27 U.S.T. 1909, T.I.A.S. No. 8289, 193 U.N.T.S. 135 (entered into force 7 July 1954) (entered into force for U.S. 7 July 1976). Convention on the Nationality of Married Women, done 20 Feb. 1957, 309 U.N.T.S. 65 (entered into force 11 Aug. 1958). Convention on the Consent to Marriage, Minimum Age for Marriage and the Registration of Marriages, opened for signature 10 Dec. 1962, 521 U.N.T.S. 231 (entered into force 9 Dec. 1964). See HEVENER, supra note 104, at 165-76. See GALEY, supra note 141, at 278. See GALEY, supra note 134, at 12. Draft Declaration on the Elimination of Discrimination Against Women, G.A. Res. 1921 (XVIII), U.N. GAOR, 18th Sess., 1274th plen. mtg., 'II 1, 1963 U.N.Y.B. 357, U.N. Doc. N5606 (1963). Id. 'II 2.

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formally considered birth control, albeit under the guise of the term "family planning," 156 and agreed to study the issue. Helvi Sipila of Finland, a longtime Commission member, was appointed Special Rapporteur on the question of family planning and subsequently produced a landmark work entitled Study on the Interrelationship of the Status of Women and Family Planning. 157 Sipila was typical of many CSW members-she was a professional woman who brought her long experience in the nongovernmental world to the UN system. Before working with the United Nations, Sipila served as president of the Finnish Girl Guides and the International Federation of Women Lawyers; as a lawyer her primary interest had been family law. Also in 1963, a new UN Report on the World Social Situation, dealing with housing, population, health, nutrition, education, and social services158-all traditional concerns of women-was before ECOSOC. The year also marked the fifteenth anniversary of the Universal Declaration of Human Rights and saw the Human Rights Commission complete a series of regional seminars on the status of women in family law. 159 In the same year, the General Assembly adopted an ECOSOC resolution on women in development, which had originally been submitted by Chile and cosponsored by numerous other delegations. 160 The resolution reflected the contents of the World Report and the new emphasis within the United Nations on development. The resolution called on all UN member states, specialized agencies, and nongovernmental organizations to appoint women "to bodies responsible for the preparation of national development plans" and drew attention to the "importance of training women so as to enable them to participate fully in all phases of . . . national development programmes .... " 161 During the discussion of these resolutions, the CSW was congratulated for its work on the legal status of women and essentially told to consider economic and social development as well. The question became one of 156. 157. 158. 159.

160.

161.

The two are quite different: birth control refers to the means the individual takes to prevent contraception, while family planning connotes a couple's decision-making. See U.N. Doc. E/CN.6/575, at 5, Addendum. See UN Report on the World Social Situation, U.N. Doc. E/CN.5/375 Add. 1 & Add. 2 (1963). See Report of the Third Committee on the Report of the Economic and Social Council, U.N. GAOR 3d Comm., 18th Sess., 1274th plen. mtg., Agenda Item 12, U.N. Doc. N5606 (1963) [hereinafter Report of the Third Committee]; U.N. GAOR, 18th Sess., Supp. No. 15, U.N. Doc. N5515 (1963). Participation of Women in National, Social and Economic Development, G.A. Res. 1920 (XVIII), U.N. GAOR, 18th Sess., 1274th plen. mtg., 1963 U.N.Y.B. 357, U.N. Doc. N5606 (1963) [hereinafter G.A. Res. 1920]. See also Report of the Third Committee, supra note 159, at 2 (stressing "the importance of ensuring greater participation of women in national, social and economic development"). G.A. Res. 1920, supra note 160, at 'll'll 1, 2.

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priorities: were programmatic efforts to improve women's current circumstances the priority, or was changing laws and policies to improve women's long-term legal and political capacity more important? Within the CSW and ECOSOC, some European and developing country representatives tended to favor the more programmatic, social welfare approach, while others took the more legalistic approach. This division continues to the present. The more simplistic want to know what women want, and the answer is both, and everything, as Frances Willard advised the WCTU years before. The ultimate desire, then and now, is for women to be considered human, a diverse, multifaceted group with both common and conflicting interests. Although CSW members were representatives of governments, most also had experience in national or international women's organizations, and, unlike the mainstream human rights organizations, the CSW never reflected strong distinctions between political and civil rights and economic and social rights. Women's experiences tending home and family and as participants in the economic, social, and cultural life of their communities blurred these distinctions. Also, the basic rights to education, employment, and health fall under the economic and social rights rubric. Against this background, work on a declaration eliminating discrimination against women began. By 1965, thirty governments, fifteen women's NGOs, and four UN specialized agencies had submitted comments on the proposed declaration. 162 Not surprisingly, education was a high priority among the submissions, as was the view that marriage and family law, reinforced by tradition and custom, was at the heart of much discrimination. Interestingly, Afghanistan's reply at that time stated that eliminating discrimination required the "combating of traditions, customs and usages which thwart the advancement of women" 163 and noted that this would require an intensive public education campaign. The idea that public opinion had to be changed was reiterated by numerous governments and NGOs. Afghanistan also suggested that "amends must be made to women by granting them certain privileges," 164 which suggestion was a precursor of the idea of affirmative action, later called "temporary special measures" by the United Nations. The same point was also made in the International Social Democratic Women's comments that concentrated on employment rights. There was strong support from Eastern Europe and the Soviet bloc for the declaration 162.

163. 164.

See UN Commission on the Status of Women: Report of the Eighteenth Session, U.N. ESCOR, Comm'n on the Status of Women, 39th Sess., Supp. No. 7, Agenda Item No. 53, at 16, U.N. Doc. E/4025-E/CN.6/422 (1965) [hereinafter Report of the Eighteenth Session]. U.N. ESCOR, Comm'n on the Status of Women, 39th Sess., U.N. Doc. E/CN.6/426, at 5 (1964) (on Afghanistan).

Id.

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with suggestions that the problems of mothers, including employed and unmarried mothers, be taken into account, a clear indication that Alexandra Kollanti's influence survived. St. Joan's Alliance, an international Catholic women's organization, suggested that resolutions adopted at their 1964 Antwerp meeting covering inheritance, ritual operations (a very early reference to female genital mutilation), and equal pay be considered for inclusion in the declaration. Other replies mentioned penal code reform, and many referred back to the UDHR, indicating that numerous respondents understood that women's rights were human rights. 165 With these comments, a draft declaration submitted by Poland, and working papers submitted by Ghana and the Mexican delegate, CSW chair Maria Lavalle Urbina, the CSW began drafting a declaration at its 1965 meeting in Teheran. A drafting committee brought forward an eleven-article text that began with a definition and condemnation of discrimination, covered virtually all the areas mentioned in the responses submitted, and concluded with an article calling on women's organizations to educate the public about the declaration's principles. 166 This draft was sent out for comments, an exercise in public education as well as a test of political sentiment. At the 1966 CSW session, the major debate concerned protection of women workers. Many argued that protection perpetuated and reinforced discrimination, while others took the more conventional view that women needed protection because of their maternal function. When the CSW draft of a declaration came before ECOSOC's Third Committee, an article calling for the abolition of discriminatory customs and traditions and raising the issue of protection of women workers created a furor. Some Third Committee delegates had suggested women be protected from "arduous work." NGOs responded with vehemence that protecting women from arduous work was ridiculous because women worldwide did such work. Nursing, tea picking, child care, and household work were arduous, they insisted, and customary family law simply reinforced women's subordinate status. By the end of their 1967 session, after some astute political maneuvering, the Commission unanimously adopted its draft and, with the support of women delegates to ECOSOC's Third Committee, an eleven-article Declaration was adopted by the General Assembly on 7 November 1967 .167 It covered the issues women had been working on for centuries.

165. 166.

See Report of the Third Committee, supra note 159. Report on the Eighteenth Session, supra note 162 at 22, art. 12 (calling on women's

167.

Declaration on the Elimination of Discrimination Against Women, G.A. Res. 2263 (XXII), U.N. GAOR, 22d Sess., 1497th plen. mtg., Vol. I, at 35-37, 1967 U.N.Y.B. 521, U.N. Doc. N6880 (1967). See also Arvonne 5. Fraser, The Convention on the Elimination of All Forms of Discrimination Against Women (The Women's Convention), in WOMEN, POLITICS, AND THE UNITED NATIONS, supra note 98, at 77.

organizations to launch a wide-spread educational campaign).

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Meanwhile, a second wave of an openly feminist international women's movement was becoming evident in the late 1960s. Small, informal consciousness-raising groups, public demonstrations on a variety of issues, and the exchange of information via informal newsletters and privately published studies and reports characterized this movement on local and national levels. It was essentially an underground movement with primarily negative and disparaging media attention. The emphasis of the new movement was on examining the pervasiveness of sex discrimination at all levels of society and strategizing as to the most effective means to overcome it. Ad hoc caucuses were organized within professional organizations to examine discrimination within the professions and academia. Integrating women into all facets of public life and at higher levels became one theme of the movement, but, first, the age-old concerns about women's education, health, birth control and abortion, and employment discrimination were analyzed by small groups and gradually brought to public attention. Within the United States, during the 1970s, the new feminists and main line, or traditional, women's organizations collaborated to have the US Congress pass numerous new antidiscrimination laws, including Title IX of the Education Amendments, 168 which required all educational institutions receiving federal funds to eliminate discrimination against women and girls. This eventually brought about exponential increases in the numbers of women studying law, medicine, and science and initiated more sports and physical education programs for girls. All of the activity drew increased media attention. Although often demeaning, the attention was still useful in raising consciousness and expectations among women, not only in the United States, but in the United Nations as well. Like all political and social movements, publicity about the feminist movement attracted attention, motivated people to ponder their own situation and make comparisons, and inevitably resulted in increased numbers joining the movement. As a learned sociologist friend once said, political movements are like snowballs rolling downhill, they gather momentum, get bigger. While the new US feminist groups paid no attention to CSW and little to international affairs in the early 1970s, traditional NGOs who lobbied the Commission were influenced by this new movement, and, with the increased dominance of the US press, the new movement gave momentum to, and reinforced, CSW's work. Following the UN custom of moving from a declaration to a convention, the Polish CSW delegate proposed the move shortly after the Declaration was adopted in 1967. Yet, it was 1972 before the Commission had a Secretary-General's report on the existing status of women's conventions,

168.

20 U.S.C. § 1681 et seq.

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their relationships to the Declaration, and responses from governments on the idea of a convention. Also, in 1972, the UN General Assembly approved what had been a dream of some female delegates when the United Nations was formed-the holding of a world women's conference.169 Moreover, 1975 was designated as International Women's Year. 170 Mexico City was selected as the site for the Conference and Helvi Sipila, a CSW representative since 1960, was chosen as Assistant Secretary General for Social Development and Humanitarian Affairs in charge of the year and the Conference. Equality, development, and peace were selected as the themes of the Conference-a clear, if unacknowledged, tribute to the 1926 Conference of the International Alliance of Women, which had first used the term "woman's movement" and asserted that the goals of this movement were "Equality, International Understanding and Peace." 171 Sipila set to work, traveling the globe, urging governments to support the Conference and to set up "national machineries," the UN term for women's bureaux or commissions. Sipila also understood that a symbol of the year was needed, one that transcended language barriers. The instantly popular result still symbolizes the international women's movement-a stylized dove, representing peace, with the women's and equality signs embedded in the body of the dove. Preparations for International Women's Year dominated CSW's agenda, but a special working group, appointed at the suggestion of the Soviet Union, Tunisia, and the United Kingdom and composed of experienced CSW workers, was created to begin work on a possible convention. The Philippines' delegate presented a draft text, noting that it implied no commitment on the part of the Philippine government. CSW leaders from the Dominican Republic, Hungary, and Egypt became the working group's officers. Taking up the Philippines' delegate's strategy of drafting with no commitment from their governments, the group decided not to attribute positions taken on specific articles or language to a particular delegate, thus allowing free discussion among the members. This created what later feminist historians called a "free space" for UN women who believed a legally binding convention was the desired goal. 172

169.

170. 171. 172.

See International Women's Year, G.A. Res. 3010 (XXVII), U.N. GAOR, 27th Sess., 2113th plen. mtg., 1972 U.N.Y.B. 454, U.N. Doc. N8928 (1972); Conference of the International Women's Year, G.A. Res. 3276 (XXIX), U.N. GAOR, 29th Sess., 2311th plen. mtg., addendum, 1974 U.N.Y.B. 657, U.N. Doc. N9829/Add.l (1974).

Id.

WH1rncK, supra note 101, at 92. See SARA M. EvANs & HARRY C. BoYTE, FREE SPACES: THE SouRcEs OF DEMOCRATIC CHANGE IN AMERICA at vii (1986) (discussing the definition of the "free spaces" idea).

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XIII. THE WORLD WOMEN'S CONFERENCES The 1975 International Women's Year Conference attracted five thousand representatives, from all branches of the new women's movement, to Mexico City, and to the NGO Tribune held in conjunction with the official UN Conference. In both the Tribune and the governmental Conference, contentious divisions between developing and industrialized countries surfaced and were energetically reported by the world's media. Developing country representatives argued development would bring equality; new feminists from industrialized countries vehemently opposed that idea, citing innumerable areas of discrimination in their countries. The atmosphere in Mexico City appeared more tense than it actually was, fed not only by the media, but also by many male delegates who thought the whole idea of a world women's conference was unnecessary, but who used it to test the political waters on such questions as development, the new international economic order (NIEO), and the influence of colonialism on developing countries, many of them newly independent. Soviet and American delegates sparred over Cold War issues in the plenary sessions, while in the drafting committee meetings for the World Plan of Action, women came together around common interests. 173 A new international women's movement was in the making. In some countries, the formation of in-country women's commissions or the "national machineries" Sipila had encouraged followed a strong feminist approach. In others, new, avowedly feminist NGOs were formed. In all countries, the symbol adopted by CSW for International Women's Year became visible. 174 These events and the symbol served to bring women together at local and national levels around common concerns and to raise awareness about sex discrimination and equality, as well as women's place in the development process. The World Plan of Action adopted at the Conference gave credit in its introduction to the work of CSW and to the numerous women's rights conventions already adopted. The Plan noted that the promotion and protection of human rights for all was one of the fundamental principles of the UN Charter and that "[h] istory has attested to the active role which women played ... in accelerating the material and spiritual progress of peoples." 175 It predicted that, "in our times, women's role will increasingly 173. 174. 175.

See ARVONNE s. FRASER, THE U.N. DECADE FOR WOMEN: DOCUMENTS AND DIALOGUE 17-54 (1987). The author of this article, then US Agency for International Development coordinator of the Office of Women in Development, received reports from mission directors that noted that they saw the symbol posted across remote corners of the developing world. UNITED NATIONS, REPORT OF THE WORLD CONFERENCE OF THE INTERNATIONAL WOMEN'S YEAR (MEXICO CITY, 19 JuNE-2 JULY 1975), 'I[ 6, U.N. Sales No. E.76.IV. l (1976), reprinted in WOMEN AND WORLD DEVELOPMENT 185-218 (Irene Tinker & Michele Bo Bramsen eds., 1976) [hereinafter World Plan of Action].

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emerge as a powerful revolutionary social force." 176 An overly optimistic fourteen-point list of five-year minimum goals was set forth, including: (a) Marked increase in literacy and civic education of women ... ; (g) Encouragement of a greater participation of women in policy-making ... ; (h) Increased provision for ... health education and services ... ; (i) Provision for parity in the exercise of civil, social and political rights such as those pertaining to marriage, citizenship and commerce; (j) Recognition of the economic value of women's work in the home in domestic food production and marketing and voluntary activities ... ; (/) The promotion of women's organizations ... ; (m) The development of modern rural technology ... to help reduce the heavy work load of women ... ; [and] (n) The establishment of interdisciplinary and multisectoral machinery within the government for accelerating the achievement of equal opportunities for women and their full integration into national life. 177

The Plan called for the "active involvement of non-governmental women's organizations [to achieve) the goals of the ten year World Plan of Action." 178 In the global action section, the Plan called on the United Nations to proclaim 1975 to 1985 the UN Decade for Women; also, it called for the drafting and adoption of a convention on eliminating discrimination against women. 179 In another section, the Plan stated that the theory and practice of inequality begins in the family and called for more equal sharing of family responsibilities between men and women. 180 Without the latter, the Plan stated, women could not be fully integrated in society or achieve equal rights. Also, without more data and information on women, development could not proceed. The United Nations and women's organizations around the world responded to the outpouring of interest generated by the IWY Conference. The Decade was established by the UN General Assembly with the subthemes of education, employment, and health, the three issues that women leaders and women's organizations had been discussing for centuries. During the Decade, there was an explosive growth in the number, style, and content of women's organizations. Many were not organizations in the

176. 177. 178. 179.

180.

Id. Id. 'II 46. Id. 'II 48.

See id. Paragraph 182 of the World Plan of Action calls for proclaiming the decade;

paragraph 198 calls for high priority to be given to the preparation and adoption of the convention on the elimination of discrimination against women, with effective procedures for implementation. Id. '!I'll 182, 198.

Id. 'II 16.

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precise meaning of that term, but informal groups operating often on an ad hoc, as needed basis. New international organizations were also formed. One of the most notable was the International Women's Tribune Center, devoted to exchanging information worldwide and concentrating on providing readily accessible information to women in developing countries. Although its emphasis was on development and on rural women, women's rights were not ignored. The resurgence of a second-wave women's movement was believed to be concentrated in the United States and Europe-and the majority of the 1975 NGO Tribune's participants were from the industrialized countriesbut, by 1976, there was enough activity to warrant and support three international publications: WIN NEWS, established in 1975; Isis, a magazine published by a new collective based in Geneva; and the International Women's Tribune Center's newsletters focusing on developing country women's activities. The Tribune Center's materials were distinguished by simple graphics and easy to read content aimed at women with low level reading skills. WIN NEWS emphasized UN activities, while Isis emphasized the more radical new women's groups in developing countries and Europe. 181 WIN NEWS and Isis represented the two different wings of the new movement: Isis, the "liberationists" who wanted to free women from traditional constraints of all kinds, and WIN NEWS, the "legalists" who aimed to change law and policy to guarantee more equality for women. Also, by the mid-1970s, foreign aid donor nations had responded to the new international women's movement and UN development initiatives by establishing women in development (WID) offices. Ester Boserup's landmark book, Women in Economic Development, published in 1969, had persuasively documented the role women played in agricultural production in developing nations. 182 Although the expressed purpose of these WID programs was to assist the male-dominated donor agencies in integrating women as both beneficiaries and agents of economic development, the momentum of the new feminist movements in industrialized countries and the World Women's Conferences influenced how WID funds were allocated. Data collection and income-generating projects were given high priority by most donors, but some, such as Swedish SIDA, supported the new women's bureaux in developing countries while others supported legal literacy and other projects devised by indigenous organizations. In terms of women's human rights, the support of legal literacy programs, including an early one in Nepal, was extremely important.

181.

182.

In 1975 the editor of WIN NEWS had published a 300-page International Directory of Women's Development Organizations beginning with the Afghan Women's Society and ending with the World Feminist Commission. ESTER BosERUP, WOMAN'S ROLE IN ECONOMIC DEVELOPMENT (1970).

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Among many of the WID officers in donor countries, a primarily longterm, albeit unadvertised, objective was improving the status of women within their own agencies and within developing countries. Leaders of women's groups, researchers and new networks were identified and supported in both developing and industrialized countries. Family planning organizations, most notably International Planned Parenthood Federation (IPPF), also identified and trained women leaders through their projects in developing countries; IPPF was noted as being one of the most effective NGOs focusing on the CSW. Before the 1980 Mid-Decade conference, an international consortium of WID offices was established under the OECD/DAC umbrella. Primarily a research, data, and information exchange mechanism, one result of the consortium was that millions of dollars were allocated by the donor nations to support the 1980 UN World Women's Conference held in Copenhagen, Denmark. Funds went not only to support the UN Conference and the parallel NGO Forum, but to support NGO workshops, tremendous numbers of publications, and the attendance of hundreds of developing country participants. While the media focused on the Israeli-Palestinian and other political confrontations at the Copenhagen Conference, the emphasis in the NGO Forum was on networking among women and the importance of women's organizations. Unnoticed by the media was the solidarity among women in recognizing discrimination even across lines of intense political disparities. Males headed virtually every government delegation, even in the preparatory conferences. Interested primarily in the political issues and protecting their country's point of view, they left their chairs to female delegation members unless a political issue was on the agenda; then the blue suits, white shirts, and ties would emerge en masse into the meeting hall. Women would turn around and look at each other knowingly as they relinquished their seats. Finally, in one preparatory meeting when the men emerged from the outer hall, a swell of spontaneous laughter greeted them. By 1985, many women led delegations and the political officers were more discreet. The Copenhagen Programme of Action, 183 while building on the Mexico City Plan, moved economic considerations to the fore. However, it emphasized that development was not only economic, but covered political, social, and cultural realms as well and that economic development projects often disadvantaged women, depriving them of their traditional forms of livelihood. 184 For the first time, as a result of WID studies, attention 183. 184.

Report of the World Conference of the United Nations Decade for Women: Equality, Development and Peace, Copenhagen, Denmark, July 14-30, 1980, U.N. Doc. NCONF.94/35 [hereinafter Copenhagen Programme of Action]. For more on the Copenhagen conference, including the NGO Forum, see FRASER, supra note 173; Jane S. Jaquette, Losing the BattleM!inning the War: International Politics,

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was directed to female-headed households, although the term "women who alone are responsible for families" was used, after considerable debate, because some delegations insisted only men could head households. Extended debate was also had over the Programme's historical perspective section on the "roots of inequality." Western industrialized countries argued that the cause of inequality was the division of labor between men and women-justified by many on the basis of a woman's distinct childbearing function; developing countries argued that "mass poverty" resulting from colonialism and unjust international economic relations was the cause, while the Soviet bloc argued that the predominant economic analyses of labor and capital (capitalism, that is) ignored women's work as producers and reproducers. Consensus was reached that discrimination was the result, no matter what view of history was taken. The Programme of Action stated that, while women were half the population of the world, they performed two-thirds of the world's work while only receiving one-tenth of world income and owning less than 1 percent of world property. 185

XIV. FROM DECLARATION TO CONVENTION TO WOMEN'S HUMAN RIGHTS TREATY Following the IWY Conference and establishment of the UN Decade for Women, the CSW undertook a three-part program: drafting the Convention; monitoring the status of women, including women in development efforts; and preparing for the second and third world conferences. In 1976, CSW took up the draft convention prepared by the special working group with the objective of having a convention ready for the 1980 Conference in Copenhagen. Articles on access to health services, including family planning, and on rural women were added, the latter clearly a product of women in development efforts. Articles 15 and 16, with very specific provisions for equality under the law and in marriage, were very contentious because they conflicted with national legal systems. The implementation article also proved difficult: should CSW or an expert group be the implementation monitoring body? 186

Women's Issues, and the 1980 Mid-Decade Conference, in WOMEN, Pmmcs, AND THE

185. 186.

UNITED NATIONS, supra note 98, at 45.

Copenhagen Programme of Action, supra note 183, 'll'II 10-16. For a fuller discussion of the drafting and adoption of the Convention, see Fraser, supra note 167. See also Report of the Working Group of the Whole on the Drafting of the Convention on the Elimination of Discrimination Against Women, U.N. GAOR, U.N. Doc. NC.3/34/14 (1979); Note by the Secretary-General, U.N. GAOR, 34th Sess., U.N. Doc. N34/60 (1979); U.N. GAOR, 34th Sess., Agenda Item 75, U.N. Doc. N34/PV.107 (1979).

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In early December 1979, the Third Committee took up the proposed convention. Time was running out if the convention was to be ready for signatures at the 1980 World Conference. The Swedish proposal for a monitoring body of twenty-three experts which would report to the UN General Assembly through ECOSOC was finally adopted. 187 Then, Mexico proposed giving governments another year to consider such a formidable document. In an astute parliamentary move, the Netherlands delegate succeeded in convincing the committee that the Mexican proposal was not germane. The convention would not be delayed. On 19 December 1979, the General Assembly adopted the Convention on the Elimination of All Forms of Discrimination Against Women, 188 but not without strong debate on the political preamble, on paragraph 2 of Article 9 on the right of women to convey nationality to their children, and on Article 16 on marriage and family law. 189 The ideas John Stuart Mill had described in 1869 were still alive and well in a number of countries. During the opening ceremony of the 1980 Conference, the Convention was presented to national governments for signature. Fifty-seven nations signed the document, and, by December 1981, the convention had acquired the twenty ratifications necessary to give the Convention force as a treaty. The result was a momentous victory, but most of the newer women's groups were now concentrating on women in development or single issues, such as health care or employment, and other programmatic efforts to improve women's current circumstances-on the whole, the Convention received little attention. By 1985, when the Third World Women's Conference was held in Nairobi, Kenya, the twenty-three member expert Committee on the Elimination of Discrimination Against Women (CEDAW), which was to receive reports from governments on Convention implementation, had begun its work, albeit rather slowly. 190 The Nairobi Conference, with its approximately fifteen thousand attendees at the NGO Forum held on the University of Nairobi campus, demonstrated to the world through extensive media coverage that the new international women's movement was extremely diverse. Again, WID offices and international donor agencies were joined

187.

188. 189. 190.

For details on the Swedish Proposal, see U.N. GAOR 3d Comm., at 10-15, U.N. Doc. NC.3/34/14 (1979). For discussion of the Convention in the Third Committee, see Report of the Third Committee, U.N. GAOR, 34th Sess., Annexes, Agenda Item 75, at 110, U.N. Doc. N34/830. For final debate and adoption in the General Assembly, see U.N. GAOR, 34th Sess., 107th plen. mtg., Agenda Item 75, at 1991-1999 (1979). See CEDAW, supra note 2. See generally Fraser, supra note 167. See 1 UNmo NATIONS, THE WoRK m CEDAW: REPORTS OF THE COMMITTEE oN THE ELIMINATION m DISCRIMINATION AGAINST WOMEN, 1982-1985 (1989).

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by national and international foundations in providing support for the conference, yet thousands of women still paid their own way. Attendees ranged from fresh-eyed recruits to sophisticated scholars to parliamentarians. The 1,200 Forum workshops on a wide array of topics reflected the diversity of women and their interests. 191 One multinational group mounted a workshop series on the Convention. As with most NGO workshops, a standing-room-only crowd gathered each day to learn about the Convention, exchange information, and report on ratification efforts in their own countries. Out of this workshop series, a group called the International Women's Rights Action Watch (IWRAW) was formed to publicize and monitor the Convention and its implementation. During the NGO Forum, the violence against women issue finally came out of the world's closet and forced itself into the public attention. Innumerable workshops on the topic were held and thousands of publications distributed. Crowds gathered daily at the Peace Tent on the Nairobi campus to discuss the links between violence in the home, violence in society, and violence between nations. The Forward Looking Strategies (FLS) document, adopted by the UN Conference in Nairobi, called for constitutional and legal reform in accordance with the Convention and for equality in social and political participation. 192 In the peace section, the violence against women issue warranted two long paragraphs and was referenced numerous times in other sections. As in the Mexico City and Copenhagen documents, education was the priority. In the FLS, it was called "the basis for the full promotion and improvement of the status of women" and the "basic tool that should be given to women in order to fulfill their role as full members of society." 193 Christine de Pizan had said the same thing centuries earlier, but by 1985, education was not merely about literacy; it encompassed concern about scholarships, stereotyped curricula, access to the highest levels of education, vocational training, and political and legal education.

191.

192.

193.

For the first time, a number of reports on the NGO conference were published. FORUM '85: Final Report, Nairobi, Kenya was commissioned by the NGO Planning Group for the Forum while Images of Nairobi and Caroline Pezzullo's For the Record . .. Forum '85 were both published by the International Women's Tribune Center in 1986. See also FRASER, supra note 1 73, at 199. This document was officially known as the United Nations Report of the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace, Nairobi, 15-26 July 1985, U.N. Doc. N CONF.116/27/Rev.1, U.N. Sales No. E.85.IV.10 (1986). It was subtitled The Nairobi Forward-Looking Strategies for the Advancement of Women. Id. 'II 163.

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XV. WOMEN'S RIGHTS AS HUMAN RIGHTS In the twenty-year period from 1975 to 1995, masses of women moved from portraying themselves as victims at the mercy of male rulers in the private and public sectors to taking leadership roles in demanding their human rights. The three World Conferences allowed an ever-growing mass of activist women to exchange experiences across national boundaries and form new international networks around common interests. The electronic and print media as well as governments responded. Women gradually became a new political constituency. Although IWRAW, through its quarterly newsletter, Women's Watch, and other publications focusing on the Convention and the work of CEDAW, tried to draw international attention to the Convention, the majority of women's organizations continued to focus on their more particular issues. It was the violence against women issue, especially domestic violence, that finally drew wide international attention to the idea that women's rights are human rights. The issue transcended race, class and cultures, and united women worldwide in a common cause. It dramatically illustrated women's subordinate position as no other issue had. Activity around the violence issue at local and national levels brought thousands of new recruits into the international movement and moved increasing numbers of women into the political arena. Although the women's convention did not address violence specifically, in its 1989 session, the CEDAW adopted General Recommendation No. 12, 194 describing how violence against women was covered by the Convention. At its 1992 session, CEDAW expanded on this in General Recommendation No. 19, 195 which stated that gender-based violence is discrimination; that such discrimination violates women's human rights; that the Convention covers both public and private acts; and that governments should take legal and other measures to prevent such violence and, in reporting under the Convention, indicate the measures taken. 196 Earlier, the Asian and

194.

Report of the Committee on the Elimination of Discrimination Against Women: General Recommendation No. 12, Violence Against Women (8th Sess. 1989), adopted 3 Mar.

1989, U.N. GAOR, 44th Sess., Supp. No. 38, 'Il'Il 7-9, 24, U.N. Doc. N44/38 (1990),

195.

196.

reprinted in Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty-bodies, at 78, U.N. Doc. HRI/GEN/1/Rev.1 (1994) [hereinafter Compilation of General Recommendations]. Report of the Committee on the Elimination of Discrimination Against Women: General Recommendation No. 19, Violence Against Women (11th Sess. 1992), adopted 30 Jan. 1992, U.N. GAOR, 47th Sess., Supp. No. 38, U.N. Doc. N47/38 (1993), reprinted in Compilation of General Recommendations, supra note 194, at 84. See U.N. Doc. CEDAW/1992/L.1/Add.1 S (1992). See also International Women's Rights Action Watch, Report on CEDAW Session 11, Aug. 1992, available from International

Women's Rights Action Watch (visited 19 July 1999).

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Pacific Development Centre in Kuala Lumpur had introduced the violence issue in a book on women's health, and, in 1986, the UN Division for the Advancement of Women convened an expert group to identify implementation measures for the FLS section on violence against women. 197 During the late 1980s and early 1990s, women's organizations, governments, and the United Nations produced well-researched publications on the issue that were widely distributed. 198 Local and national organizations did the same. The United Nations' Violence Against Women in the Family 199 is one of the most comprehensive of these publications. It pointed out the obvious, that violence within the home "has long existed ... hidden by family privacy, guilt and embarrassment and, to a certain extent, traditional customs and culture." 200 While some organizations, especially local ones, concentrated on treating the victims of such violence, others worked to bring the issue to public attention. The momentum behind the issue made women's human rights the most dramatic agenda item at the 1993 World Conference on Human Rights held in Vienna, Austria. Virtually every government at the Conference felt compelled to give at least lip service to the violence issue and to women's human rights. The parallel NGO Forum was inundated with materials and activists on both the violence issue and on women's human rights generally. Highlighting the issue, a dramatic tribunal, organized by the Global Campaign for Women's Human Rights, was carried live on TV monitors throughout the conference hall. As a result, the Vienna Declaration and Programme of Action contained an extensive section on women's human rights with additional references throughout the document. 201 It declared that "[t)he human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights ... " and that women's human rights "should form an integral part of the United Nations human rights activities." 202 Traditional human rights groups that had long concentrated on human rights abrogations by governments against their citizens began to accept the fact that violations of rights by citizens

197.

198. 199. 200. 201. 202.

This expert group meeting was only one result of ECOSOC Resolution 1984/14 of 24 May 1984 on violence against women that allowed the Branch for the Advancement of Women to expand work on the subject. Violence in the Family, E.S.C. Res. 1984/14, U.N. ESCOR, 19 plen. mtg. (1984). See, e.g., WoMEN's WATCH (the quarterly newsletter of the International Women's Rights Action Watch) (for a sampling of these publications). U.N. CENTRE FOR SOCIAL DEVELOPMENT AND HUMANITARIAN AFFAIRS, VIOLENCE AGAINST WOMEN IN THE FAMILY, U.N. Doc. ST/CSDHN2, U.N. Sales No. E.89.IV.5 (1989). Id. at 3. Vienna Declaration and Programme of Action, U.N. GAOR, World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., U.N. Doc. NCONF.157/24 (1993), reprinted in 32 1.L.M. 1661 (1993). Id. 'II 18.

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against each other were equally valid human rights abrogations. The private and public spheres began to merge in human rights theory and practice. The 1995 UN World Conference on Women held in Beijing, China and

the regional preparatory meetings for that Conference reaffirmed the conclusions of the Vienna Conference and put women's human rights even

more firmly on the world agenda. Among the critical areas of concern for that Conference were, in order of priority: the burden of poverty on women; unequal access to education and training; health care; violence against

women; the problems of armed conflict; economic inequalities; inequality of power and decision-making; insufficient mechanisms to promote the

advancement of women; lack of respect and protection of women's human rights; stereotyping of women and inequality in communications, especially the media; and the environment. 203 Discrimination against and violations of

the rights of the girl-child was added at the behest of African women who, at their 1995 regional preparatory meeting in Senegal and also at their 1985

Arusha conference, argued what Wollstonecraft and de Pizan had articulated centuries earlier: if attention is not paid to girls and their education, and if girls are not thought of as equal potential citizens, the situation of

women will never change. This was a recognition of history and a determination not to repeat it.

XVI. CONCLUSIONS The history of the drive for women's human rights indicates that only when women are literate, when they can articulate their view of life in publications and before audiences, when they can organize and demand equality, when girls are educated and socialized to think of themselves as citizens as well as wives and mothers, and when men take more responsibility for child and home care, can women be full and equal citizens and able to enjoy human rights. The question of shared responsibility for, and the valuing of, the care of children and the home goes to the heart of the implementation of the women's human rights. The Taliban edicts are only an extreme example of the resistance to this idea. Resistance is found even among educated women who accept the double burden of being wholly or partially responsible for both the economic support and physical care of children

203.

Fourth World Conference on Women: Action for Equality, Development, and Peace, Beijing Declaration and Platform for Action, adopted 15 Sept. 1995, U.N. GAOR, ch. Ill, '11'11 41-44, U.N. Doc. NCONF.177/20 (1995), reprinted in REPORT OF THE FouRTH

WoRLD CONFERENCE oN WoMEN (1995) (recommended to the UN General Assembly by the Committee on the Status of Women on 7 Oct. 1995).

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and the home. Numerous articles in the Convention on the Elimination of All Forms of Discrimination Against Women deal with this problem. Article 5 seeks to eliminate stereotyped roles for men and women and to ensure that family education teaches that both men and women share a common role in raising children. 204 Article 10, dealing with education, reiterates the same idea. 205 Article 11 calls for maternity leave and "social services to enable parents to combine family obligations with work responsibi Iities .... " 206 As John Stuart Mill put it in 1869, marriage should be thought of as a partnership, a partnership of equals analogous to a business partnership, and the family not "a school of despotism," but "the real school of the virtues of freedom." 207 Article 16 of the Women's Convention lays out the legal framework for such a partnership,2°8 but the legal and de facto situations vary because of age-old customs and traditions. Over the centuries, tremendous progress has been made in defining, demanding, and implementing women's human rights. Women have moved from the private sphere of home and family into the public sphere as citizens and workers. In many respects and in many countries, women are now considered equal humans, legally if not socially or economically. Yet, reconciling family obligations with political and economic responsibilities remains a challenge for most women of the world. It is a formidable problem in the most industrialized nations and in the poorest families of all nations. The challenge for the twenty-first century is to find ways to reconcile these responsibilities so that women can exercise their human rights and become full citizens in all respects. It may take a new wave of an international women's movement to accomplish this task. Meanwhile, however, the Women's Convention, now popularly called the women's human rights treaty, has been ratified or acceded to by 163 nations209 and has become a formidable weapon in the struggle for worldwide implementation of women's human rights. Women's groups around the world are using the principles set forth in the Convention to promote women's rights observance through court cases; as the basis for advocacy in changing national laws and policies; and for highlighting

204. 205. 206. 207. 208. 209.

CEDAW, supra note 2, art. 5. Id. art. 10. Id. art. 11 . Bm & OFFEN, supra note 42, at 398. CEDAW, supra note 2, art. 16. See Committee on Elimination of Discrimination Against Women To Hold Twenty-First Session at Headquarters, U.N. Press Release WOM/1125, 4 June 1999, at 4. Sadly, the United States is not one of the ratifying countries. Although Presidents Carter and Clinton both submitted the treaty for ratification to the US Senate, the Senate has yet to act, and US women's organizations have not made ratification a priority item.

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abrogations of women's human rights before international committees. Increasing numbers of women's organizations are developing "shadow reports" on implementation of the treaty in countries coming up for review by the CEDAW Committee, which, in turn, is becoming more aggressive in challenging governments on conformance with the treaty. Christine de Pizan would be delighted to know that Mary Robinson of Ireland is now the United Nations High Commissioner for Human Rights, but early nineteenthcentury women writers such as Jane Austen would also recognize the fear that compels Gulf women to write anonymously or to use pseudonyms. 210 Although women's rights are now recognized as human rights, recognition does not mean implementation. Much work still needs to be done to achieve human rights for all.

210.

See WoMEN' s WATCH, Dec. 1998, at 3.

[9] The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights? Frederic Megret* ABSTRACT The UN Convention on the Rights of Persons with Disabilities is about more than making sure that existing human rights are applied to persons with disability. It also subtly reformulates and extends existing human rights to take into account the specific rights experience of persons with disability. In fact, the argument can be made that the Convention comes close to creating new rights, or at least very new ways of seeing common rights. This suggests a deeper point about the fragmentation of international human rights law and the increasingly recognized need to take into account the irreducibility of the experience of certain categories of persons. The Disabilities Convention has some interesting lessons to teach about human rights more generally.

I.

INTRODUCTION

On 13 December 2006, the much expected United Nations Convention on the Rights of Persons with Disabilities was adopted. 1 The Convention has rightly generated tremendous expectations that it can bring succor to persons • Frederic Megret is Assistant-Professor, Faculty of Law, McGill University; Canada Research

Chair in the Law of Human Rights and Legal Pluralism; and Member, Centre for Human Rights & Legal Pluralism, McGill University. The author would like to thank Parul Shah and Andrea Hwang for their invaluable research assistance. Comments by Sean Kelly on a previous version of this article were also extremely helpful. 1. International Convention of the Rights of Persons with Disabilities and its Optional Protocol, U.N. GAOR, 61st Sess., Item 67(6), U.N. Doc. N61/611 (Dec. 6, 2006) [hereinafter Disabilities Convention].

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with disabilities the world over whose rights have often been persistently and systematically violated. In this article, however, I want to take a step back from what the Convention will do for persons with disabilities, and inquire instead about some of the changes it portends for the idea of human rights itself.2 In other words, I want to examine the Disabilities Convention less as a disability lawyer interested in what human rights can bring to the plight of persons with disabilities, rather as a human rights lawyer interested in how an issue such as disability can help us think about some of the more significant changes underway in the international law of human rights. Specifically, I want to tackle the emergence of an international rights regime tailored to persons of disabilities as an instance-the latest and possibly one of the most sophisticated-of a broader trend, which I describe as the "pluralization of human rights." I define the "pluralization of human rights" as the phenomenon whereby human rights, as law and ideology, has increasingly recognized the needs of specific groups or categories within humanity as worthy of a specific human rights protection. This it has done most notably through the adoption of specific covenants against racial discrimination (CERD), discrimination against women (CEDAW), children (CRC), migrant workers (CRMW), and indigenous people (DIP). This phenomenon is hardly ever analyzed as such. Analyses of specific conventions abound, and a diversity of sometimes weighty, sometimes anecdotal reasons are put forward why in a given case a specific international instrument was required. However, in the midst of the ad hoc, often both intensely political and intensely pragmatic, process by which international human rights treaties are adopted, there has been little sense of a broader conceptual shift at work. This rate of change is especially remarkable as there have arguably been few more significant trends in the last thirty years than this intense diversification of human rights' subject matter. I am not interested directly in whether this trend is a "good" or a "bad" thing, or whether it is functionally efficient from the point of view of the defense of human rights. Rather, I am interested in the broader theoretical questions this movement poses, and in particular, what its proper explanation is. One minimalist "functional" explanation is that there is no fundamental, principled reason why specific treaties are needed, only circumstantial, largely political and pragmatic reasons. Because certain groups have traditionally been ignored by the mainstream of human rights, one had reached a stage where something more was needed-something, say, in the nature of a strong political gesture-to simply bring attention to the issue. 3 I find

2. 3.

This article is part of a larger series which aims to analyze the Disability Convention from a variety of rights perspectives. For a classic defense of the need for a new treaty on such a basis, see Lenore Manderson, Disability, Global Legislation and Human Rights, 47 DEV. 29, 30 (2004) ("A convention

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that proposition unsatisfactory because at least some group-specific treaties have been more than a wake-up call and have made profound attempts at reformulating rights. Another explanation, which I have explored elsewhere, is that there is something missing in the language and style of "mainstream" international human rights, which requires at least an adaptation of its categories to protect members of certain groups. In that context, the Disabilities Convention is particularly noteworthy for skirting around some of the traditional dichotomies of human rights and proposing a much more holistic concept of what rights entail for certain persons. 4 In this article, I want to explore a third and related explanation, namely the possibility that the adoption of specific instruments is linked to the irreducibility of the experience of certain group members in terms of their human rights. Specific instruments are needed not only to adapt the existing language of rights, but because there is a dimension of the experience of specific groups that is inherent to them and which almost requires the creation of new rights. This explanation, is an intriguing possibility, not only in and for itself, but also because of the way it may be seen as clashing with a certain claimed unity of the human rights project. To summarize my intuition here: I see human rights as fundamentally making a point about the sameness and unity of human beings. From these ideas are derived those of equality and universality. It is this sameness, this belonging to a unique species, which forms the hard core of human rights normative ambition. Group-specific treaties conversely, if my hypothesis is correct, can be seen as at least partly making a point about difference and pluralism. Difference and pluralism are obviously in tension with the ideas of equality and universality. From thereon, the most theoretically interesting question arising out of this "pluralization" is, in my view, the way it at least potentially and implicitly challenges the idea that human rights are about promoting equal rights for all, by suggesting that human rights may also be about delving deeply into issues of identity, survival, and dignity of particular groups. I see the pluralization of human rights as having been intensely ambiguous on this question (beginning with the fact that it is rarely asked), for reasons that probably have to do with human rights politics, but also some of the tensions at the root of the human rights project. The problem pluralization poses implicitly in terms of the tenor of rights can be seen as the following: If the rights of human beings are the rights of

4.

provides the highest level of a statement of principles upon which basis member governments might maximize and protect individual capabilities. It represents a consensus about what is right and proper in any society; it provides legitimacy to efforts to fight for and protect individuals' rights."). Frederic Megret, The Disabilities Convention: Towards a Holistic Concept of Human Rights?, 12 INT'L J. HuM. Rrs. 259 (2008).

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all human beings, then it follows that these rights should also be the same for all human beings. While there may, therefore, be a need for functionally specialized conventions (civil and political rights versus economic and social; torture; disappearances), fundamentally, there should be no need for group-specific conventions. The only rationale for having group-specific conventions is as a purely corrective, stop-gap measure if these groups, despite the undeniable applicability of human rights to them, have for some reason been left aside. If this conception is correct, then in a sense all that is needed is an anti-discrimination treaty to make the point as clear as possible. Indeed, the prevailing model behind a treaty like the Convention on the Elimination of Racial Discrimination is, as its title indicates, that of "anti-discrimination." It does not aim to grant members of racial groups or members of certain racial groups (e.g. oppressed ones) rights that they would not already have. Rather, such treaties have the ambition of making good on the promise of human rights, by making it clear that discrimination on the grounds of race is particularly abhorrent. 5 However politically important they may be, there is no major conceptual or ontological need for such treaties, merely a contingent, historical and practical need. An alternative, much more complex and contentious account of what is at stake with the pluralization of human rights, is that the vision of human rights as being the same for all is both helpful and insufficient. Even though the unity of rights captures a fundamental intuition, certain groups do need separate restatements of how rights apply to them, either because they have specific needs to enjoy their rights, different versions of the same rights, or possibly even slightly different rights. Indeed, one might claim that the mere existence of group-specific international rights instruments suggests that there is something specific about these groups, which is not, but perhaps most importantly, cannot be taken adequately into account by human rights instruments that have the ambition of covering the whole human genre. What I want to do in this article, therefore, is locate the Disabilities Convention somewhere along these divisions, and see how it can help us develop a better understanding of what is at stake. Is the Convention merely making it clear that existing human rights should apply to persons with disabilities, and possibly making it clear how the rights should apply? Or is it actually creating rights that are specific to persons with disabilities? If so, how might one properly characterize these rights, i.e. as disability rights or, maybe, as "human rights that are specific to persons with disabilities," or even as some intermediary category?

5.

See generally, International Convention on the Elimination of All Forms of Racial Discrimination, adopted21 Dec. 1965, art. 5, U.N. Doc. N6014 (1966), 660 U.N.T.S. 195, (entered into force 4 Jan. 1969) [hereinafter CERD].

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I do not want to make any broad claims that the Disabilities Convention is profoundly different from other previous group-specific international human rights instruments, but one of my hypotheses is that the Convention radicalizes some of the trends already evident in those earlier treaties. Yet, by and large, the instinctive response to the question of whether the Disabilities Convention has created "new" rights, by many involved in the effort to promote it, has been a denial a little too emphatic to be entirely convincing. It is common wisdom in certain circles, for example, that the Disabilities Convention has not created new rights. Contra this vision, my contention will be that the answer to the question of whether the Convention is creating new rights is certainly more complex than simply an outright denial that any new right is being created. Although downplaying the degree of novelty of a treaty in the context of tense negotiations among states may be a fair strategy, it does not do justice to the multi layered normative reality of as rich an instrument as the Convention. The Convention does not make such an analysis particularly easy. It is a complex piece of drafting susceptible to many readings because there is little sense of hierarchy between different provisions and different articles vary diametrically in tone and level of precision. But, I want to show how the Disabilities Convention is a very subtle mix of the old and the new, which confirms existing rights even as it amplifies upon, evolves from and even departs from them in the sort of creative ways required by the issue of disability. In fact, I will lean towards arguing that the Convention reinforces the idea that group-specific treaties are needed at least in part to take into account the irreducible experience of these groups in terms of rights. Specifically, I will contend that the Convention does four things at once that prolong and attempt to make sense of the dialectics of rights and disability. First, it is true that the Convention does, to an extent, merely restate the applicability of existing human rights to persons with disability from an anti-discrimination perspective ("affirmation," section II). If the only purpose of the Convention was to restate existing rights, however, one could question why there was a need for such an international human rights instrument; or maybe why the Convention was not cast as the "Convention on the elimination of discrimination against persons with disabilities." Accordingly, the Convention also fundamentally enriches and modifies the content of existing rights when it comes to people with disability, often by thoroughly reformulating them ("reformulation," section Ill). In some cases, the Convention actually comes up with new categories of rights that significantly prolong a number of existing rights ("extension," section IV). Finally, the Convention also comes very close to creating new rights. These rights inhere in the experience of disability and are arguably, at least in the particular form in which they are presented, specific to persons with disabilities ("innovation," section V).

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II. AFFIRMATION: DISABILITY RIGHTS "AS HUMAN RIGHTS" In part, the Convention is a way of stating in one instrument a number of things that are scattered in half a dozen other human rights treaties. In that respect, it can be most usefully compared to CERD, a classic anti-discrimination convention, which specifies at length all the rights that are supposed to be guaranteed to all, regardless of race, and which incorporates a broad range of internationally protected human rights, both civil and political, and economic, social, and cultural. 6 The goal of the Disabilities Convention is stated as "promot[ing], protect[ing] and ensur[ing] the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities." 7 Elsewhere in the Convention the foremost "general obligation" of states parties is listed as "undertak[ing] to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities." 8 At various points in the Convention, different rights are simply "reaffirmed," or the Convention obliges states to "recognize" or to "guarantee" them. The rights that are the object of this solemn re-recognition include: life; 9 recognition everywhere as persons before the law, 10 liberty and security of person, 11 respect for physical and mental integrity, 12 liberty of movement, to marry and found a family, 13 education, 14 the highest attainable standard of health, 15 to work, 16 an adequate standard of living, 17 social protection, 18 and to take part ... in cultural life. 19 Freedoms include: freedom from torture or cruel, inhuman or degrading treatment or punishment,2° freedom to choose one's residence and to a nationality, 21 freedom of expression and opinion, 22 and freedom from arbitrary or unlawful interference with his or her privacy. 23 Political rights are also listed as a category. 24 Each of these rights has been

6. 7. 8. 9. 10. 11 . 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

Id. Disabilities Convention, supra note 1, art. 1 (emphasis added). Id. art. 4.1. Id. art. 10. Id. art. 12.1. Id. art. 14.1 (a). Id. art. 17. Id. art. 23.1 (a). Id. art. 24.1. ld.art.25. Id. art. 27. ld.art.28. Id. art. 28.2. Id. art. 30. Id. art. 15.1. Id. art. 18. ld.art.21. Id. art. 22. Id. art. 29.

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recognized for decades in either the Universal Declaration, 25 the International Covenant on Civil and Political Rights,2 6 or the International Covenant on Economic, Social and Cultural Rights,2 7, if not all three. Why should this affirmation of previous rights be necessary in the case of persons with disabilities? The simple answer is that it has not always been, and certainly still is not, in many instances, obvious. For a long time, some persons with disabilities were hardly considered human and were, as a result, denied basic rights. 28 Persons with disabilities may have always been theoretically entitled to human rights, but in both law and practice they have often been denied them. Persons with disabilities have been victims of genocide, 29 eugenism, 30 and have suffered from massive discrimination resulting from a denial of their basic rights. 31 In this respect, the Convention's contribution is more than conveniently bringing the human rights of persons with disabilities under the same roof. Rather, there is a more fundamental and principled push to make it clear that existing rights are applicable to persons with disabilities. The Convention stands in affirmation of the "right to have rights:" an official, unambiguous and long overdue solemn recognition of the absolute equality of persons with disabilities with all other persons. The very first general principle of the Convention, which mandates "respect for inherent dignity" of persons with disabilities, 32 is revealing in that sense. The inherent dignity of all human beings is, after all, the fundamental premise from which rights traditionally flow. One is reminded of Arvonne

25. 26. 27. 28. 29.

30.

31. 32.

Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217 A (Ill), U.N. GAOR, 3d Sess. (Resolutions, pt. 1), U.N. Doc. N180 (1948), reprinted in 43 AM. J. INT'L L. 127 (SUPP. 1949) [hereinafter UDHR]. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A Res. 2200 (XXI), U.N. GAOR 21stSess., Supp. No. 16, U.N. Doc. N6316 (1966), 999 U.N.T.S. 1 71, (entered into force 23 Mar. 1976) [hereinafter ICCPR]. International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A Res. 2200 (XXI), U.N. GAOR 21st Sess., Supp. No. 16, U.N. Doc. N6316 (1966), 999 U.N.T.S. 171, (entered into force 3 Jan. 1976) [hereinafter ICESCR]. JOANNA RYAN, THE POLITICS OF MENTAL HANDICAP (1987). Sally M. Rogow, Persecution and Genocide of Children and Young People with Disabilities in Nazi Germany, 26 DEv. D1sAB1uT1Es BULLETIN (1998); Stephen C. Baldwin, Genocide & Deafness, 4 THE Vo1cE 7, 7-11 (May-June 1988); Sally M. Rogow, Child Victims in Nazi Germany, 8 J. HOLOCAUST Eou. 71 (1999). A. Brauner, A Final Solution for People with a Mental Disability-History of the Ideas of Eugenism and Euthanasia and of their Practice in the National-Socialist Germany, 1 EuR. J. ON MENTAL DISABILITY 3-11 (1994); Eow1N BLACK, WAR AGAINST THE WEAK: EUGENICS AND AMERICA'S CAMPAIGN TO CREATE A MASTER RACE (2003). For an interesting case study of persons with mental disabilities, see AMNESTY INTERNATIONAL, BuLGARIA: FAR FROM THE EYEs oF Soc1ETY: SvSTEMAnc D1scR1M1NAT10N AGAINST PEOPLE WITH MENTAL D1sAB1L1ms (2002), available at http://www.amnesty.org/en/library/info/EUR15/005/2002. Disabilities Convention, supra note 1, art. 3(a).

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Fraser's classic article, "Becoming Human," 33 on the topic of women's rights. The Disabilities Convention is the most unmistakable international recognition of persons with disabilities' full humanity. Apart from recognizing rights for persons with disabilities, the Convention is also noteworthy for relying on what might be described as its twin pillars: equality and non-discrimination. Often linked to the project of (re)affirming certain rights, for example, is the insistence that persons with disabilities should enjoy them "on an equal basis with others" (the expression is repeated no less than thirty-five times). The idea of equality confirms the application of human rights to persons with disabilities, rather than creating new rights. Although the Convention is not specifically described as an anti-discrimination Convention in the same mold as CEDAW and CERD, there is no doubt that a concern about discrimination is at its core. As the 2002 UN Report states: "the disability rights debate is not so much about the enjoyment of specific rights as it is about ensuring the equal effective enjoyment of all human rights, without discrimination, by people with disabilities." 34 The Preamble of the Convention mentions the "need for persons with disabilities to be guaranteed their full enjoyment without discrimination" 35 and stresses that" ... discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person." 36 Non-discrimination, furthermore, is presented as one of the Convention's "General Principles." 37 States are to ensure and promote the full realization of the human rights for persons with disabilities without discrimination. 38 When it comes to prohibiting discrimination on the ground of disabilities, it is worth noting that this is less obvious than it might be in existing human rights instruments. On the one hand, one would think that persons with disabilities, as arguably the largest minority in the world, 39 are a particularly

33.

34. 35. 36.

37. 38. 39.

Arvonne S. Fraser, Becoming Human: The Origins and Development of Women's Human Rights, 21 HuM. RTs. Q. 853 (1999). Human Rights of Persons with Disabilities, Commission on Human Rights 58th Sess., U.N. Doc. E/CN.4/2002/18/Add.1 (2002) (emphasis added). Disabilities Convention, supra note 1, pmbl. (c). Id. pmbl (f).

Id. art. 3. Id.

Theresia Degener relies on this idea. I am not sure it is an entirely adequate description: women are a larger group, although the question of whether they are a minority is more complex. The total number of discriminated racial, cultural or national minorities is probably higher, although no single "group" probably reaches 500 million disabled people. The idea should probably be taken not too strictly and as emphasizing simply that there is a very substantial number of people who are disabled in the world today. See Theresia Degener, Disabled Persons and Human Rights: The Legal Framework, in HUMAN RIGHTS AND DISABLED PERSONS: ESSAYS AND RELEVANT HUMAN RIGHTS INSTRUMENTS 9 (Theresia Degener & Yolan Koster-Dreese, eds. 1995).

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obvious target group for discrimination. Discrimination is not defined in the ICCPR, but it is defined in CEDAW and CERD along more or less the same lines, such that discrimination is any distinction, exclusion, restriction or preference based on certain grounds 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. 40 This definition seems particularly helpful in the case of persons with disabilities whose very disability is reinforced by discriminatory barriers to their inclusion in society. On the other hand, it must be said that international human rights instruments have traditionally not done as much as they could to make differential treatment of persons with disabilities a clear-cut case of discrimination. The ICCPR, for example, prohibits discrimination "on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." 41 These clearly illustrate that, in theory, disability is not excluded. But, it is troublesome, to say the least, that none of the enumerated criteria seem to include disability. Indeed, despite the chance to correct this in its General Comment on discrimination, the Human Rights Committee failed to take up that opportunity, and even seemed to reify the list. 42 Nor have persons with disability traditionally been considered a minority. 43 Although it is not actually encouraged by international human rights law, discrimination against persons with disabilities was bizarrely not explicitly condemned. Its unambiguous prohibition by the Convention is one particularly clear-cut example where that treaty, in stating the obvious, is also effecting change. Only more recent international human rights instruments (such as the European Charter of Rights) 44 have corrected this omission. This first analysis of the Disabilities Convention thus reveals it as having made a very significant step in recognizing that persons with disabilities are entitled to the same rights as all human beings. However, if that was all that the Convention did, it would merely be a functional correction to lapses of

40. 41. 42.

43. 44.

CERD, supra note 5, art. 1; Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec. 1979, G.A. Res. 34/180, 34th Sess., Supp. No. 46, art. 1, U.N Doc. N34/46 (1979), (entered into force 3 Sept. 1981) [hereinafter CEDAW]. ICCPR, supra note 26, arts. 2, 26. General Comment 78: Non-Discrimination, Human Rights Committee, 37 th Sess., (1989), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev. l (1994), at 26 (lamenting that a number of constitutions do not include all of the grounds of discrimination contained in the ICCPR). Degener, supra note 39, at 11-12. Charter of Fundamental Rights of the European Union, art. 21, 2000 O.J. (C 364) 1.

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the past, rather than a treaty engaging in a novel exercise of developing the concept of rights in relation to a particular group.

Ill. REFORMULATION: DISABILITY RIGHTS AS HUMAN RIGHTS "WITH A DIFFERENCE" Although the restatement/anti-discrimination part of the Disabilities Convention does not do much in terms of renewing the genre of human rights, the Convention also goes further than this solemn reaffirmation of the obvious (or what should be obvious). This it does by outlining a number of key characteristics of the rights listed in the Convention that are not otherwise specified in the major international human rights instruments. First, the Convention brings substantial extra semantic texture to certain rights, by clarifying the way they are to apply to persons with disabilities. Simply restating rights would, in certain cases, have been insufficient because it is the very abstract blandness of these rights' previous formulations that has often left people with disabilities without the requisite protection. For example, in the UDHR and the ICCPR, the rights to "recognition everywhere as a person before the law" 45 and to equality before the law, 46 are enunciated as such without further description. The Disabilities Convention specifies that the right to equal recognition before the law means that persons with disabilities must have access to "the support they may require in exercising their legal capacity," 47 and that this legal capacity must be protected by "appropriate and effective safeguards to prevent abuse in accordance with international human rights law," then spells out in detail what sorts of considerations these safeguards should take into account. 48 Other rights are also succinctly but significantly reformulated: the right to liberty and security of persons implies that "the existence of a disability shall in no case justify a deprivation of liberty;" 49 the right to liberty of movement and nationality50 implies that persons with disabilities shall not, as a result of their disability, be deprived of their nationality, or their "ability to obtain, possess and utilize documentation of their nationality," or of the "right to enter their own country." 51 Freedom of expression and opinion 52 is specified as including the "freedom to seek, receive and impart information

45. 46. 47. 48. 49. 50. 51. 52.

UDHR, supra note 25, art. 6; ICCPR supra note 26, art. 16. UDHR, supra note 25, art. 7. Disabilities Convention, supra note 1, art. 12.3. Id. art. 12.4 Id. art. 14.1 (b). UDHR, supra note 25, art. 13; ICCPR, supra note 26, art. 12. Disabilities Convention, supra note 1, art. 18.1. UDHR, supra note 25, art. 19; ICCPR, supra note 26, art. 19.

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and ideas ... through al I forms of communication of their choice." 53 Respect for privacy54 is to be protected "regardless of place of residence or living arrangements" 55 and specifically includes "the privacy of personal, health and rehabilitation information of persons with disabilities." 56 The right to respect for home and the family 57 emphasizes that persons with disabilities shall have the right to "decide freely and responsibly on the number and spacing of their children" and "retain their fertility on an equal basis with others." 58 The content of the rights to education, 59 health, 60 work, 61 and adequate standard of living, 62 are all spelled out in detail in a way that caters to the needs of persons with disabilities. 63 In all of these cases, a number of problematic features in what one might term persons with disabilities "access" to rights are implicitly highlighted. Rather than being left to the interpretation of states, these concerns are woven into the definition of those rights, so as to leave no doubt regarding their exact scope. None of these elements had previously been mentioned in existing human rights treaties, so they are, in a sense, specific to persons with disabilities. The point is not to depart from human rights standards, but rather make clear how these standards are to be understood if persons with disabilities' rights are not to remain an abstraction. Second, the Convention makes a very significant effort to highlight, sometimes in considerable detail, how the rights it proposes to protect are to be implemented and guaranteed. This explicitness about means stands in contrast to traditional international human rights law. Classically, human rights have been marked by a sort of indifference of rights towards means. Rights are proclaimed in performative fashion, as goals imposing an obligation on the state to either deliver that goal or strive toward it with a certain intensity. Typically, the question of their implementation is left largely to the discretion of states, partly because international human rights ideology shuns involvement in political controversies about the "right" political system. This sort of attitude towards right is evidenced most clearly in such instruments as the UDHR and the ICCPR. At best, the precise implementation of rights is an issue left to monitoring mechanisms' normative output, but instruments such as the ICCPR clearly shy away from moving into the realm of policy.

53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63.

Disabilities Convention, supra note 1, art. 21 . UDHR, supra note 25, art. 12; ICCPR, supra note 26, art. 17. Disabilities Convention, supra note 1, art. 22.1. Id. art. 22.2. UDHR, supra note 25, art. 16; ICCPR, supra note 26, art. 23. Disabilities Convention, supra note 1, art. 23.1(c). ICESCR, supra note 27, art. 13. Id. art. 12. Id. art. 6. Id. art. 11. Disabilities Convention, supra note 1, at arts. 24, 25, 27, 28.

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Some international human rights instruments have gradually shown the way to adopting more vigorous implementation language, especially in cases where there is an understanding that significant social policies may be at stake. The ICESCR, for example, hesitates between the bare affirmation of rights and forays into policy, 64 although it does ultimately steer very clear of anything that might be interpreted as taking a stance in favor of a particular socio-economic model. Even this mixed model suggested by the ICESCR tends to fail in one key respect when it comes to specific groups because of its inability to take into account the extent to which these groups may require different types of implementation measures. Both the ICCPR and the ICESCR have implicitly adopted a rigorously egalitarian model which fails to take into account the fact that certain groups are not in the same starting position as others when it comes to rights, for example, when they have suffered from situations of historical discrimination. These treaties' relative silence when it comes to group-specific implementation thus makes it all the more easy for states, left to their own devices, to adopt similar measures for all individuals within their population. While possibly not expressly imposing an undifferentiated treatment of all within the population, international human rights' bias is certainly an egalitarian one, which does not lead easily to the adoption of group-specific measures, even when such measures may be absolutely necessary to protect the rights of members of a certain group. As it happens, this is clearly the model that has not worked for a number of minorities. Compared to classical rights treaties (the UDHR, the ICCPR), an anti-discrimination convention such as CEDAW was the first to adopt what one might describe as an "appropriate measures" approach to rights implementation. This approach is less interested in the proclamation of rights as such (which are either presupposed or mentioned in passing) than it is with political, economic, and social reform in order to address some of the key obstacles to the realization of these rights. It brings an approach to rights that is much more energetic and less contemplative than the earlier "proclamation model." If ever there was a group that has suffered from this earlier model, it is arguably persons with disabilities, who have been consistently excluded from partaking in the many human rights advances of the last fifty years, not so much because they were not covered in theory by existing rights, but by the failure of states to focus their attention on their particular difficulties. "Laissez-faire" rights policies when it comes to persons with disabilities, can have particularly catastrophic consequences, in light of the complex needs of these persons to both keep the state and society at bay on the one hand, but enlist their help in securing autonomy and participation on the other. 64.

ICESCR, supra note 27, arts. 6(2), 10, 11(2), 12(2), 15(2).

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To correct this historical failure, the Convention arguably goes further than any international human rights instrument before it in spelling out in substantial detail exactly how states should go about ensuring the rights of persons with disabilities. While CEDAW certainly contained many provisions of this kind, the "appropriate measures" that would be required to effect women's rights were not always or overly specified. The Disabilities Convention, in contrast, breaks that conceptual barrier by "getting its hands dirty," as it were, with the details of how persons with disabilities' rights are to be implemented. The catalogue and shades of obligations involved is unusually long and diverse. Typically, in order to render effective the rights of persons with disabilities, states are required to "enable" them to do certain things or "facilitate" 65 their lives. There are many references to "taking appropriate measures" 66 and "adopt[ing] immediate, effective and appropriate measures." At times, the Convention goes out of its way to describe what exactly is required of state parties. Generically one can classify the measures to be adopted by states in the following manner: -To repeal or adopt certain laws67 -To mainstream concern for persons with disabilities68 -To launch public awareness campaigns 69 -To build or adapt certain infrastructures 70 -To train specialized personnel7 1 -To employ certain individuals 72 -To provide certain forms of services or assistance73 -To consult with the representative organizations of persons with dis abilities 74 All of these obviously appear as duties of the state rather than as human rights per se. They indicate how certain rights are to be guaranteed and do not strictly lay the foundations for new rights. However, it is not simply semantics to suggest that they also come close to creating some sort of sui generis entitlement.

65. 66. 67. 68. 69. 70. 71. 72. 73. 74.

Disabilities Convention, supra note 1, arts. 9.l(e), 13.1, 18.1(b), 19, 20(a), 20(b), 21(b), 24.2(d), 24.3, 24.3(a), 24.J(b), 29(a)(ii). Id. arts. 4.l(b), 6.2, 9.1, 9.2. Id. arts. 4. l(a), 4. l(b), 4.3, 15.2, 16.1, 16.5, 27.1, 30.3. Id. art. 4.1 (c). Id. arts. 8.1 (a), 8.1 (c). Id. arts. 9.1 (a), 9.2(d). Id. arts. 4.1(h), 8.2(d), 9.2, 13.2, 20(c), 24.4, 25(d), 26(2), 32. l(b). Id. art. 24.4. Id. pmbl. (x), arts. 4.1(f), 4.l(hHi), 7.3, 9.1, 9.2(eHf), 16.2, 16.4, 19(b), 20(b), 21(c), 23.2, 23.3, 25, 26, 27.1 (e), 28.2(a), 28.2(c), 29(a)(iii), 30.1 (c), 32.1 (d). Id. art. 4(3 ).

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For example, if a state party is bound by a treaty to "take measure y" to "ensure right A:' of person D with "measure y'' being identified clearly as the only measure susceptible of guaranteeing "right A," then any failure to adopt "measure y'' will be a violation of "right A:' of D. One could argue that the adoption of "measure y'' merely spells out the content of "right A," but one could also reasonably argue that "measure y" also creates a right for D to have "measure y'' adopted. To some extent "measure y'' is merely a means to an end ("right A:'). In another sense, it is also a sort of "secondary right" (in its own right, as it were), say, right "a" ("right A:' being the primary right). It may be that D will not be able to complain of a failure to adopt "measure y," short of showing that this has resulted in a violation of "right A:', but she will now have very precise grounds to establish the violation of "right A:' (non-adoption of "measure y''). This tendency to delve deep in issues of implementation and to essentially absorb them in a shroud of rights is taken to new heights by the Disabilities Convention. At the very least, the Convention fundamentally renews our understanding of what these rights mean and imply, and, therefore, substantially enriches their content.

IV. EXTENSION: DISABILITY RIGHTS AS HUMAN RIGHTS "PLUS" A number of provisions in the Convention go further than simple reformulation by emphasizing rights that have typically not been highlighted as such in the main international human rights instruments, even though they may draw on existing rights. These rights are not entirely new, and indeed, are probably rights of all human beings, but the particular circumstances of disability have made it necessary to incorporate them in the Convention almost as novel and separate categories, rather than simply variations on existing themes (as above). What these rights have in common, I would argue, is that they focus on the societal dimension of the rights experience, thereby departing from human rights' traditional emphasis on the relationship of the individual to the state. They thus display more sensitivity to issues of structural power and oppression than the mainstream human rights framework has typically done. This fully takes into account the fact that persons with disabilities have often been as much at risk of having their freedoms curtailed in the private sphere or by society than by acts of the state as such. Two examples come to mind of this phenomenon. The first is Article 16's right to "freedom from exploitation, violence and abuse." Although this sounds intuitively like it could fit in any classical list of liberties, there is, of course, no such expressly mentioned right in either the Universal Declaration, the ICCPR, or any other international human rights instrument. In fact,

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despite what one would surmise has been its centrality in the emergence of the international human rights movement against these forms of human oppression, the terms do not even appear in these key instruments. 75 Has a new right thereby been created? The question is an intriguing one. I would argue that the proper way to analyze "freedom from exploitation, violence and abuse" is probably somewhere between a compendium of existing rights and an almost entirely new right. In a sense, freedom from such treatment is another way of describing the "right to life, liberty and security of person," 76 and can probably be seen as including freedom from torture, cruel, inhuman or degrading treatment or punishment, freedom from slavery or servitude, etc. However, all these rights are also protected independently in the Disabilities Convention, so that clearly "freedom from exploitation, violence and abuse" must have been seen as adding something to the existing register of rights. Indeed, if one interprets those words according to their ordinary meaning, they obviously have an extremely broad ambit. There is a sense, moreover, in which, in this specific context, the Convention switches the focus from rights as such to certain phenomena which are perceived as the root cause of rights violations, at least for persons with disability. One explanation is that "exploitation, violence and abuse," as phenomena rather than particular manifestations of rights abuse (torture, attacks on the integrity, or on liberty), manage to capture structures of oppression that lie behind rights violations. "Exploitation, violence and abuse" also appear as phenomena that are unusually amorphous, even all-pervasive, and which naturally locate themselves beyond the limited realm of the state's relationship to individuals within its jurisdiction. Article 16's specific reference to protection "both within and outside the home" points very directly in this direction, by suggesting "the home" as one of the key variables in assessing "exploitation, violence and abuse"-a very unusual step in international human rights law. A second example of how the Disabilities Convention creates, through some of its reordering, rights which are quite specific to persons with disabilities, is the at least implicitly promoted "right to participation," as embodied in the Convention's reference to "full and effective participation and inclusion in society." This idea is promoted as one of the Convention's "General Principles" 77 rather than a right as such. Overall, however, it comes very close to emerging as a right as such.

75. 76. 77.

Violence is mentioned in the ICCPR but only in article 20(2) on the prohibition of advocacy of "national, racial or religious hatred." Violence is not highlighted more generally as a key phenomenon with which human rights attempt to deal. UDHR, supra note 25, art. 3. See also ICCPR, supra note 26, art. 9 (not mentioning the right to life as such). Disabilities Convention, supra note 1, art. 3.

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Like "freedom from exploitation, violence and abuse," "participation" is not a right that is protected as such in the main international human rights instruments. Nonetheless, like "freedom from exploitation," it appears as both a combination of existing rights, and an extrapolation on those. In terms of existing rights, "participation" incorporates the right to participate "in political and public life" 78 (which is not mentioned as such in existing human rights instruments, but is another way of describing political rights) and the right to participate in cultural life, recreation, leisure and sport7 9 (which is protected as such in the UDHR). These rights are amplified in the context of disability so that, for example, "participation in political and public life" includes such an obligation for states as that of promoting actively "an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs." 80 "Participation in cultural life, recreation, leisure and sport" is similarly supplemented by a number of provisions regarding its scope when it comes to persons with disabilities. The vision of a "right to participation," however, goes further than these two rights taken together. Lack of participation in society and in the community are seen both as an inherent part of the very definition of disability, 81 a cause of persons with disabilities' dismal rights experience, 82 and what the Convention seeks to combat primarily. 83 The whole Convention is infused by this notion of "participation" being something akin to a right more generally. That right goes beyond participation as the ability to stand and vote for public office, for example, or participate specifically in "cultural life, recreation, leisure and sport." 84 Rather, it is a broader demand, made not only to the state but also to society, to allow persons with disabilities to fully become members of society and the various communities of which they are part. For example, state parties are required to "take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of . . . their full inclusion and participation in the community." 85 The right to education is geared towards enabling "persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community." 86 The goal of "habilitation and rehabilitation" efforts is to ensure "full inclusion and participation in all aspects of life" 87 and state parties are to implement programs that "support participation and inclusion in the community." 88 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88.

Id. art. 29. UDHR, supra note 25, art. 27; ICESCR, supra note 27, art. 15. Disabilities Convention, supra note 1, art. 29(6). Id. pmbl. (e). Id. pmbl. (k). Id. pmbl. (m), (y). Id. art. 30 Id. art. 19. Id. art. 24.3. Id. art. 26.1. Id. art. 26.1 (b).

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Very closely related to this notion of participation (and in itself an undeniably new right) is the right to "live in the community." 69 Again, this is a right that is not protected in any existing international human rights instruments, largely because it is assumed to be unproblematic in the case of persons without disabilities and to be subsumable under larger rights (e.g. freedom from the state interfering with it). In the case of persons with disabilities, the right needs to be not so much protected from its potential denial by the state, as rescued from its potential virtuality. Persons with disabilities are arguably unique in their vulnerability to both exploitation and denial of participation. This may make it necessary to strengthen the normally available protections by going beyond the normal register of rights. Through the protection from "exploitation, violence and abuse," and through its insistence on the notion of "participation," the Convention arguably provides very useful pointers on how to mediate the tensions among individuals with disabilities, the state, society, and communities. It thus may go deeper in addressing violations by extending known and existing rights with an upper-layer of rights whose goal can be seen as protecting persons with disabilities from some of the "root causes" of violations of their rights. It is less clear whether these are rights that are specific to persons with disabilities, rights that are specific to them in their particular formulation, or simply rights which exist in some form or other for all human beings, but whose existence needs to be highlighted in this context because of the particular vulnerabilities of those with disabilities. At any rate, however, a normative space is opened that seeks to bridge the gap, sometimes uneasily, but with a definite sense of resolve, between general formulations of rights and the need to craft categories of rights that better take into account the irreducible experience of those with disabilities.

V. INNOVATION: DISABILITY RIGHTS AS (HUMAN) RIGHTS INHERENT TO PERSONS WITH DISABILITIES A further manifestation of the Disabilities Convention's willingness to endorse the idea that certain rights are specific to members of certain groups is that, in a limited way, the Convention is actually going further than merely extending existing rights, and that it comes very close to either creating new rights or formulating rights in the context of disability that have never been framed as such. The most significant and perhaps only example of this type of right in the Convention is what I would describe as a significant push towards promoting

89.

Id. art. 19.

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a concept of persons with disabilities' "autonomy." 90 Although not defined in the Convention, autonomy refers to the ability of persons with disabilities to do things on their own without the assistance of others and is linked to the right to be "free to make one's own choices," which is highlighted in the Preamble as being of "importance" to persons with disabilities. 91 The Convention may fall short of proclaiming a right to autonomy, but respect for the autonomy of persons with disabilities is certainly presented as one of the Convention's "General Principles." 92 This "general principle," furthermore, receives substantial echo in the rest of the Convention, with state parties being pressured to take a broad range of measures to facilitate the exercise of that autonomy. Indeed, the idea of autonomy seems to be part of an entire normative constellation which gives it an added glow. It can be linked, for example, to the ideas of "personal mobility"93 and "accessibility." 94 Moreover, there is certainly a "right to live independently" proclaimed as such, 95 and the Convention's push in favor of autonomy should be read in this light. The goal of measures of "habilitation and rehabilitation" is described as enabling "persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability." 96 In the same vein, it is the obligation of state parties to " ... render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities"97 (meaning that state parties should make it possible for persons with disabilities to be autonomous parents). Article 12 is, perhaps, the high point of this drive to "proclaim" persons with disabilities' autonomy, which recognizes the principle of persons with disabilities' legal capacity, in what must surely be one of the Convention's greatest advances. This comes close to the right to be recognized as a "legal person" as expressed in the ICCPR, but the insistence on capacity (rather than merely personality), in a context where it has often been denied to persons with disability, is particularly enlightening. It comes as a sort of legal culmination of the recognition of autonomy: it is because of their

90.

91. 92. 93. 94. 95.

96. 97.

On the centrality of autonomy to the idea of human rights, and its rediscovery in the context of persons with disabilities, see Gerard Quinn, The International Covenant on Civil and Political Rights and Disability: A conceptual framework, in HuMAN R1GHTs AND DISABLED PERSONS-ESSAYS AND RELEVANT HUMAN RIGHTS INSTKUMENTS 69-70 (Theresia Degener & Yolan Koster-Dreese eds., 1995). Disabilities Convention, supra note 1, pmbl. (n). Id. art. 3(a). Id. art. 20. Id. art. 9. This in itself goes further than some of the claims advanced in the 1970s, for example, by the 'independent living' movement, which promoted 'independent living' from a general political perspective rather than strictly a rights framework. Disabilities Convention, supra note 1, art. 26.1. Id. art. 23.2.

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fundamental autonomy that persons with disability should be granted the legal capacity that is its natural extension. Provisions regarding access to justice, which do not feature as a separate right in the ICCPR, are of similar inspiration and point to persons with disabilities' "effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages." 98 It is also interesting to note that the strong, almost ontological link, among autonomy, legal capacity and rights, was highlighted by a footnote that was for a time introduced in the Arabic, Chinese, and Russian language translations of one of the final drafts of the Convention, which presented capacity as being the "legal capacity for rights." 99 It is not clear why, for all this insistence on autonomy, there is no "right to autonomy" mentioned as such. This may be merely out of prudence or conservatism. More interesting is the idea that one might hesitate to describe autonomy as a right because it is in the nature of autonomy that it can be recognized or not impeded, but not granted as such to individuals who are not, in essence, autonomous. That may be true in some cases and the situation of the profoundly mentally ill, for example, does create dilemmas for human rights. 100 However, autonomy should be seen as less of an "either/or" notion, and more something that can be located on a spectrum. Even in the case of persons without disabilities it is by and large a fiction, and the granting of autonomy by human rights law is also part and parcel of what makes individuals actually (to the extent there is such a thing) autonomous. Moreover, to a large extent the absence of autonomy is not so much a given, but a result of persons with disabilities' treatment by the state and society, so that a "right to autonomy" would, at any rate, involve less the granting of what cannot be granted than the organization of society in such a way as to maximize each individual's degree of autonomy. All in all, in fact, whether the Convention actually proclaims a right to autonomy or not is probably a secondary point: the Convention makes the achievement of autonomy for persons with disabilities one of its primary goals. It holds up autonomy, therefore, as something akin to an entitlement. Now, this mention of "autonomy" is clearly a specificity of the Convention. Autonomy, however familiar it may be to the conceptual apparatus of human rights, 101 is not included as a right in any of the existing international 98. 99.

100. 101.

Id. art. 13.1. Ad Hoc Committee Reaches Agreement on Treaty Protecting, Promoting Rights, Dignity of Persons with Disabilities, Ad Hoc Committee on Convention on Persons with Disabilities, Department of Public Information, 21st mtg., U .N. GNSOC/4720, 5 Dec. 2006 (emphasis added). See Anthony P. Butcher, The Relative Irrelevance of Human Rights for the Care and Protection of the Mentally Ill, 35(1) Aus. ). Pm. So. 85-97 (2000); Nathaniel Laor, The Paradox of Autonomy: The Case of the Mentally Ill, 18 ). VALUE INQUIRY 159 (1984). Quinn, supra note 90; Luis Kutner, Commentary: Aristotle, Aquinas and Kant on Human Rights, 55 MARQ. L. REv. 264 (1972).

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human rights instruments. No mention is made of it in either the Universal Declaration, the ICCPR, or any of the leading international human rights instruments. The reason for this omission is not hard to fathom: in accordance with an old liberal, particularly Kantian idea of rights, autonomy is presumed in these instruments as what gives rise to rights, so that it need not be specified. Autonomy is, in a sense, antecedent to the logic of rights. Indeed, autonomy is probably one of the things that renders the individual capable of enjoying these rights (as opposed to merely being their more--or less-passive recipient) and, therefore, of fully participating in the realm of rights. The point is that it would not make sense to proclaim a right to autonomy in the case of persons without disabilities because such individuals have historically captured the human rights middle-ground by imposing the norm of the autonomous, self-determining agent. Autonomy is therefore not something granted or encouraged in any particular way. Rather, it is effectively what human rights seek to protect. Conversely, it is because autonomy is often precisely what persons with disabilities lack, at least in part, that the Convention must bring to light that which is otherwise implicit, as it attempts to ground the "human rights" of persons with disabilities into, if not a right to be autonomous, at least an attempt to augment their effective autonomy to a point where their rights can be made effective. The Convention's efforts, in that respect, might be seen as helping to "constitute" people with disabilities more fundamentally as full rights-holders. The Disabilities Convention, therefore, almost has a pre-rights logic in that it strives to equalize the ability of disabled persons to make the most of their rights with that of the rest of the population. In that, arguably, the Convention creates a new layer of deeper rights or brings to the fore a layer of rights that is normally sedimented in rights discourse. The status of such a "new" entitlement as autonomy is unclear normatively, and I do not believe such a perplexing issue can be settled once and for all. The type of debate involved here is not so different from similar questions that have arisen in the past regarding women's rights "as human rights," particularly reproductive rights, 102 and raises profound questions about whether some of the rights of members of certain groups are human rights properly so-called, a variation on the theme of human rights, or something altogether different. There is a case, on the one hand, that what we are dealing with here is a sort of right that is specific to persons with disabilities, in that it is grounded in the irreducibility of their experience (that of being at a substantial disad-

102.

MAJA

ERIKSSON KIRILOVA, REPRODUCTIVE FREEDOM: IN THE CONTEXT OF INTERNATIONAL HUMAN R1GHTS I.Aw (2000); CORRINNE A. PACKER, THE RIGHT TO REPRODUCTIVE CHOICE: A Sruov

AND HUMANITARIAN

IN INTERNATIONAL LAW

(1996).

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vantage in terms of autonomy). The right to autonomy in that context would be the analytical equivalent of those few women's rights that are not simply universal human rights, such as the right to pregnancy-related health care or to maternity leave. Within the Convention's architecture, it addresses the irreducible core of the life-experience of persons with disabilities·. To characterize such a right as a "disability right," somehow isolated from "human rights" conceptually, on the other hand, would not convey fully the extent to which it is intertwined with the normative structure of human rights. Autonomy is not a "disability right" in a sense wholly detached from human rights. As I have shown, the goal of reinforcing autonomy is precisely to reinforce the sense of entitlement to and capacity to benefit from rights. Autonomy is hardly alien to the lexicon of human rights, and it is not as if human beings in general lack entitlement to respect for their autonomy. Indeed, almost all existing rights can be seen, in some way or other, concurring to protect that autonomy. However, it is not simply that the history and conceptual genesis of rights have made the proclamation and reinforcement of autonomy as less than urgent a matter as it is in the case of persons with disabilities. There is a sense in which autonomy means something very different for persons with disabilities, a sense in which it has a very different consonance in terms of rights. Autonomy is effectively a form of human rights that takes its meaning in relation to the specific vulnerabilities of a particular group.

VI. CONCLUSION In this article, I have identified the "pluralization of human rights" as one of the most interesting and least studied puzzles of the contemporary development of international human rights. I have suggested that the extent, degree, and rationale for this pluralization is not always obvious and offered the Disabilities Convention as a particularly enlightening instance of that process. The Convention appears as one further step in the direction of recognizing that there are, within humanity, a number of groups of human beings whose distinct claims to human rights are based on irreducible experiences that require a tailoring of the general rights regime. The Convention also goes a long way, properly studied, to reveal why it is that such specific instruments are needed. I have sought to assess the extent to which the Convention is merely restating existing human rights in the context of persons with disabilities or, more interestingly, actually participating in the creation of rights that are, in some way, specific to persons with disabilities. I have found that the Convention does many things at once. In addition to a dimension that merely restates the obvious, the Convention, for example, is part and parcel

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of a profound process of reformulating rights. In some cases, it goes further and the reformulation is such, its effect on existing and accepted categories so profound, that one could argue the Convention is effectively extending rights by adding an extra layer to them that takes into account the specific experience of persons with disabilities. Finally, I .have argued that when it comes to the Convention's insistence on the need to reinforce persons with disabilities' autonomy, one enters a realm fraught with difficulties but within which one may discern the emergence of a new brand of almost "hybrid" rights: rights that clearly partake in the grammar of human rights, yet whose proclamation only really makes sense to crystallize the experience of a particular group or condition. On the whole, therefore, I conclude that the superficial assessment that the Convention "does not create new rights" is at least unhelpful and probably misleading. The Convention is testimony to the significant need for specific human rights instruments when it comes to certain categories of humanity whose condition has made them uniquely vulnerable to human rights violations and who are insufficiently protected by the existing, mainstream vocabulary of rights. In this light, the phenomenon of human rights "pluralization" can be assessed more generally. If specific treaties are needed for particular groups of human beings, or types of individuals within humanity, it is not simply because they have more or less accidentally been left on the wayside of human rights. It seems, on the contrary, that there has been something insufficiently sensitive to humanity's pluralism about the principal human rights instruments. The Disabilities Convention is one of the most significant attempts to correct that excessive "unitary-ness" of human rights, in one particular context. What these international human rights treaties have "missed" when it comes to persons with disabilities is a variety of things. First, they have been insufficiently alert to the fact that persons with disabilities might be flatly denied their rights, and missed the obvious fact that it would help, for example, to specify that disability can be a ground for discrimination. Second, they have been inattentive to the extent to which different rights may mean different things for different persons, so that certain rights can only be fully realized if their content and the road to their implementation are quite narrowly defined in the treaties themselves, bearing in mind the particular circumstances of those they seek to protect. Third, the existing international human rights regime has poorly understood the fact that the state is not always the main threat to the realization of human rights of some, and the risk that social structures, prejudices, the community, or the family pose in processes of exclusion, oppression, discrimination, or violence. Fourth, and at a deeper level, a concept of human rights that presupposes that all individuals are equal because they are all fundamentally alike can

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become oblivious to the fact that persons with disabilities, for example, are not autonomous in the same way as persons without disabilities. On the whole, I would argue that the Convention is more of a rights Convention than a disability treaty, except that it tinkers very substantially with the scope of existing rights and is constantly testing their limitations. It is true, to state the obvious, that the Convention only applies to persons with disabilities. In that respect, it is a normative instrument firmly anchored in the need to protect the experience of a particular category of population. One would not-indeed one has not-ever formulated rights in quite the same way for any other category or group, let alone for the whole of humanity. By the same token, the Convention does not create a "ghetto" of "disability rights." It constantly draws on, reformulates, expands, and innovates on the basis of canonical human rights concepts. "Human rights as they apply to persons with disabilities" (rather than "disability rights") borrow the basic grammar of human rights in almost every respect apart from their ratione personae scope: they accrue in their holders because of their very nature and inherent dignity, they are not dependent on discharging any particular duty, their violation engages the state's responsibility internationally, they have an erga omnes character, etc. They are rights of persons with a disability by virtue of being human and, therefore, being entitled to whatever it takes for these human rights to be realized. I would describe them as "disability human rights:" rights that are specific to persons with disabilities, yet rooted in the universality of rights. The Disabilities Convention confirms an idea for the international human rights movement that is capital and increasingly accepted, yet complex and rich with implications: that there are rights that can and should be guaranteed universally, yet whose formulation and scope needs to be tailored to the specific experience of a particular category of humanity.

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[10] Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles Michael O'Flaherty* and John Fisher**

Abstract On 26 March 2007, a group of hum.an rights experts launched the Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity (the Yogyakarta Principles). The Principles are intended as a coherent and comprehensive identification of the obligation of States to respect, protect and fulfil the human rights of all persons regardless of their sexual orientation or gender identity. Since their launch the Principles have attracted considerable attention on the part of States. United Nations actors and civil society. It is likely that they will play a significant role within advocacy efforts and. whether directly or otherwise, in normative and jurisprudential development. The present article constitutes the first published critical commentary on the Principles. It seeks to situate them within the contexts of (a) the actual situation of people of diverse sexual orientations and gender identities, and (b) the applicable international human rights law as it stands today. Thus situated, the Yogyakarta drafting process and the outcome text are examined. The final section of the article comprises a preliminary review of the impact and dissemination of the Principles. • Professor of Applied Human Rights and Co-director of the Human Rights Law Centre. School of Law, University of Nottingham; Member of the Human Rights Committee and Rapporteur for the development of the Yogyakarta Principles ([email protected]). •• Co-director of ARC International, a non-governmental organisation that advances recognition of sexual orientation and gender identity issues at the international level [email protected]). The authors express appreciation to Caroline Przybylla for her assistance with the referencing of this article.

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I. Introduction Worldwide, people are subject to persistent human rights violations because of their actual or perceived sexual orientation and gender identity. These human rights violations take many forms, from denials of the rights to life, freedom from torture, and security of the person, to discrimination in accessing economic, social and cultural rights such as health, housing, education and the right to work, from non-recognition of personal and family relationships to pervasive interferences with personal dignity, suppression of diverse sexual identities, attempts to impose heterosexual norms, and pressure to remain silent and invisible. At least seven countries maintain the death penalty for consensual samesex practices,1 and numerous reports have documented persons killed or sentenced to death because of their sexual orientation or gender identity, 2 including a gay man sprayed with gasoline and set on fire in Belgium, the murder of a transgender human rights defender in Argentina, a nail bomb explosion in a gay bar in the United Kingdom, killing three people and injuring dozens of others, the murder of a gay rights activist by multiple knife wounds in Jamaica, prompting a crowd to gather outside his home, laughing and calling out 'let's get them one at a time', and the recent execution-style murder of two lesbian human rights defenders in South Africa. Often killings based on sexual orientation or gender identity are perpetrated 'by agents of the State, and their murders go unpunished. Indeed no prosecution is ever brought'.3 In a recent report, 4 Amnesty International documents serious patterns of police misconduct directed against individuals in the United States because of 1

2

3 4

Those states are Iran, Mauritania, Saudi Arabia, Sudan, United Arab Emirates, Yemen and Nigeria (the death penalty applies in 12 Northern provinces). See Ottoson, 'State-Sponsored Homophobia. A World Survey of Laws Prohibiting Same Sex Activity between Consenting Adults', International Lesbian and Gay Association (ILGA). April 2007; and International Lesbian and Gay Association, 'World Day against Death Penalty: 7 Countries Still Put People to Death for Same-Sex Acts: Press Release, 10 October 2007. See Amnesty International, 'Crimes of Hate, Conspiracy of Silence. Torture and Ill-Treatment Based on Sexual Identity', AI Index ACT 40/016/2001, August 2001 at 21; Human Rights Watch, 'In a Time of Torture. The Assault on Justice in Egypt's Crackdown on Homosexual Conduct', 1 March 2004, available at: http://hrw.org/reports/2004/egypt0304/ [last accessed 15 February 2008]; Human Rights Watch, 'Hated to Death: Homophobia, Violence and Jamaica's HIV/AIDS Epidemic', November 2004, available at: http://hrw.org/reports/2004/ jamalca1104/jamaicall04.pdf (last accessed 15 February 2008]; and Human Rights Watch, 'More Than a Name. State-Sponsored Homophobia and its Consequences In South Africa', 1 January 2003. available at: http://www.hrw.org/reports/pdfs/g/general/safriglhrc0303.pdf [last accessed 15 February 2008]. See also International Commission of Jurists, 'Sexual Orientation and Gender Identity in Human Rights Law. References to Jurisprudence and Doctrine of the United Nations Human Rights System', November 2007 at 87-106. Statement by the Special Rapporteur on extrajudicial, summary or arbitrary executions, Human Rights Council, 19 September 2006, available at: http://www.extrajudlcialexecutlons. org/reports/dialogues/hrc.second..session/texts/Alston.pdf (last accessed 15 February 2008]. Amnesty International 'Stonewalled: Police Abuse and Misconduct against Lesbian, Gay, Bisexual and Transgender People in the US', AI Index AMR 51/122/2005, September 2005,

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their sexual orientation or gender identity, including profiling of such individuals as criminal, selective enforcement of laws, sexual, physical and verbal abuse, failure to respond or inadequate responses by the police to hate crimes and violence, as well as to situations of domestic violence that involve samesex partners, inappropriate searches and mistreatment in detention and a lack of accountability for perpetrators. Those who transgress gender norms are particularly likely to be targeted for violence. The organisation 'Transgender Day of Remembrance' estimates that one transgender person is killed every month in the US. 5 In Nepal, mitis (people born as men who identify as women) have been beaten by police with batons, gun butts and sticks, burnt with cigarettes and forced to perform oral sex. 6 Transgender people are 'often subjected to violence ... in order to "punish" them for transgressing gender barriers or for challenging predominant conceptions of gender roles'.7 and transgender youth have been described as 'among the most vulnerable and marginalized young people in society'.8 As one Canadian report underlines: The notion that there are two and only two genders is one of the most basic ideas in our binary Western way of thinking. Transgender people challenge our very understanding of the world. And we make them pay the cost of our confusion by their suffering.9 Violations directed against lesbians because of their sex are often inseparable from violations directed against them because of their sexual orientation. 10 Community restrictions on women's sexuality result in a range of human rights violations, such as the multiple rape of a lesbian in Zimbabwe, arranged by her own family in an attempt to 'cure' her of her homosexuality. 11

5 6

7 8

9 10

11

available at: http://www.amnestyusa.org/outfront/stonewalled/reportpdf [last accessed 15 February 2008]. Transgender Day of Remembrance. ti.bout the Day of Remembrance', available at: http:// www.gender.org/remember/day/what.html [last accessed 15 February 2008]. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 'Summary of Information, Including Individual Cases, Transmitted to Governments and Replies Received', Commission on Human Rights, 21 March 2006, E/CN.4/ 2006/6/Add.l at paras 180 and 183. Report of the Special Rapporteur on the question of torture and other cruel. inhuman or degrading treatment or punishment, UN General Assembly. 3 July 2001, A/56/156 at para. 17. Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Commission on Human Rights, 5 January 2004, E/CN.4/2004/9 at para. 123. Findlay, as cited in Egale Canada Human Rights Trust, 'Outlaws & In-laws: Your Guide to LGBT Rights, Same-Sex Relationships and Canadian Law' (2003) at 46. See generally. Rothschild, 'Written Out: How Sexuality is Used to Attack Women's Organizing', International Gay and Lesbian Human Rights Commission and the Center for Women's Global Leadership (2005); and Saiz, 'Bracketing Sexuality: Human Rights and Sexual Orientation - A Decade of Development and Denial at the UN', (2004) 7 Health and Human Rights 2 at 64-6. Report of the Special Rapporteur on violence against women, its causes and consequences, Commission on Human Rights, 31 January 2002, E/CN.4/2002/83 at para. 102; Report of the

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The Institute for Democracy in South Africa has reported that lesbians face violence twice as frequently as heterosexual women, and are at increased risk of being raped precisely because of their sexual orientation, often by someone they know. 12 According to the Institute, the reason most frequently cited for rape of lesbians was that the man needed to 'show her' she was a woman.13 The linkages between violence based on sex, sexual orientation, gender identity and gender expression are illustrated by a recent case in which a teenager in Dublin attacked a woman he mistook for a gay man because of her hairstyle. Approaching the woman and her male companion with the inquiry 'are you two gay guys?' he proceeded to strike the couple, knocking them to the ground, before kicking the woman in the back and stomach, and jumping on the man's back. 14 More than 80 countries still maintain laws that make same-sex consensual relations between adults a criminal offence. 15 Recently, such laws were used in Morocco to convict six men, after allegations that a private party they had attended was a 'gay marriage',16 and in Cameroon 11 men were arrested in a bar believed to have a gay clientele in May 2005, and sent to prison where they spent more than a year, and a further six men were arrested on 19 July 2007, after a young man who had been arrested on theft charges was coerced by police into naming associates who were presumed to be homosexual. 17 In other countries, laws against 'public scandals', 'immorality' or 'indecent behaviour' are used to penalise people for looking, dressing or behaving differently from enforced social norms. 18 Even where criminal sanctions against homosexuality or 'immorality' are not actively enforced, such laws can be used to arbitrarily harass or detain persons of diverse sexual orientations and gender

12 13 14 15 16 17

18

Special Rapporteur on violence against women, its causes and consequences, Commission on Human Rights, 12 February 1997, E/CN.4/1997/47 at para. 8. See also, Report of the Special Rapporteur on violence against women, its causes and consequences, 'Intersections between culture and violence against women', Human Rights Council, 17 January 2007, A/HRC/4/34. Graham and Kiguwa, 'Experiences of Black LGBTI Youth in Peri-Urban Communities in South Africa', Community Media for Development (CMFD) and the Institute for Democracy in South Africa (IDASA), 2004, at 15. Ibid. at 5. Tuite, Teen Attacked Couple he had Mistaken for Two Gay Men', Irish Independent, 10 January 2008. Ottoson, supra n. 1. Amnesty International. 'Morocco/Western Sahara: Drop Charges of Homosexuality against Six Men and Ensure their Safety', Press Release, 16 January 2008. Opinions adopted by the Working Group on Arbitrary Detention, 'Opinion No. 22/2006 (Cameroon)', Human Rights Council. 2 February 2007, A/HRC/4/40/Add.l at 91. Johnson, i\rbitrary Arrests and Detention of Men in Cameroon on Charges Related to Sexual Orientation and Gender Identity', International Gay and Lesbian Human Rights Commission (IGLHRC), 11 September 2007. See, for example, Human Rights Watch, 'Kuwait: Repressive Dress-Code Law Encourages Police Abuse. Arrests Target Transgender People', Press Release. 17 January 2008, available at: http://hrw.org/english/docs/2008/0l/17/kuwaitl7800.htm [last accessed 15 February 2008].

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identities, to impede the activities of safer sex advocates or counsellors, or as a pretext for discrimination in employment or accommodation.19 Those seeking to peaceably affirm diverse sexual orientations or gender identities have also experienced violence and discrimination. Participants in an Equality March in Poland, for example, faced harassment and intimidation by police as well as by extremist nationalists who shouted comments such as 'Let's get the fags', and 'We'll do to you what Hitler did with Jews', 20 and attempted suppression of Pride events has been documented in at least 10 instances in Eastern Europe. 21 State interference with such exercise of the freedoms of expression, assembly and association have included banning of Pride marches, conferences and events, condemnatory anti-homosexual comments by political representatives, police failure to protect participants from violence or complicity in such violence, and discriminatory or arbitrary arrests of peaceful participants. 22 Discrimination in accessing economic, social and cultural rights has been widely documented. People have been denied employment, employment-related benefits or faced dismissal because of their sexual orientation or gender identity. 23 In the context of the right to adequate housing, lesbian and transgender women have been found to be at increased risk of homelessness, discrimination based on sexual orientation or gender identity in renting accommodations has been experienced both by individuals and same-sex couples, and persons have been forced from their homes and communities when their sexual orientation or gender identity has become known. 24 Transgender persons may face particular obstacles in seeking to access gender-appropriate services within 19 20 21

22 23

24

Voices against 377. 'Rights for All: Ending Discrimination against Queer Desire under Section 377', 2004, available at: http://files.creaworld.org/files/VoicesReportEnglish.pdf [last accessed 15 February 2008]. Report by the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance. Commission on Human Rights. 27 March 2006, E/CN.4/ 2006/16/Add.l at para. 72. ILGA-Europe, 'Prides against Prejudice. A Toolkit for Pride Organising in a Hostile Environment', September 2006, at 9, available at: http://www.ilga-europe.org/europe/ publications/non..periodical/prides.against.prejudice.a.toolkit.for.pride.organisingin..a.hostile. environment.september.2006 [last accessed 15 February 2008]. Report by the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, supra n. 20 at paras 72-3. See, for example, Abramowicz, 'Situation of Bisexual and Homosexual Persons in Poland', Campaign against Homophobia and Lambda Warsaw Association, Warsaw, 2007, at 20, available at: www.kampania.org.pl/cms/data/upimages/report.homophobia.Poland.2007.EN.pdf [last accessed 15 February 2008]; Human Rights Watch, supra n. 2 at 209-11; Egan v Canada [1995] 2 SCR 513 at 600-1; International Gay and Lesbian Human Rights Commission (IGLHRC), :Abuses of Freedom of Assembly, Association and Expression against Sexual Minorities in Indonesia', 2007 (addressing denials of the right to work to transgender persons); Report of the Secretary-General on integrating the human rights of women throughout the United Nations system, 10 January 2005, E/CN.4/2005/68 at para.14, citing the Report of the Special Rapporteur on the sale of children, child prostitution and child pornography; supra n. 8. Report by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination, Commission on Human

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homeless shelters. 25 Materials referencing issues of sexual orientation and gender identity have been banned from school curricula, student groups addressing sexual orientation and gender identity issues have been prohibited, students have faced high levels of bullying and harassment because of their actual or perceived sexual orientation or gender identity, and in some cases young persons who express same-sex affection have been expelled. 26 In some countries, laws have prohibited the 'promotion of homosexuality' in schools. 27 Multiple health-related human rights violations based on sexual orientation and gender identity have also been documented. Lesbian, gay, bisexual and transgender persons have been forcibly confined in medical institutions, and subject to 'aversion therapy', including electroshock treatment. 28 Criminal sanctions against homosexuality have had the effect of suppressing HIV/AIDS education and prevention programmes designed for men who have sex with men or persons of diverse sexual orientations or gender identities. 29 Transgender people report having been referred to by health professionals as

25 26

27

28

29

Rights, 27 February 2006, E/CN.4/2006/118 at para. 30; and Human Rights Watch, supra n. 2 at 52-5. Amnesty International. supra n. 4 at 113. Forum for the Empowerment of Women, 'Dropping Out or Forced Out?: Young Black Lesbian Women and the Right to Education in South Africa', ongoing documentation. 2007, submitted to the Office of the High Commissioner for Human Rights as part of an NGO submission in the Universal Periodic Review of South Africa; International Gay and Lesbian Human Rights Commission (IGLHRC). 'Cameroon: Concerns of Arbitrary Arrest and Detentions. School Expulsions and Harassment of Gays and Lesbians in the Media', December 2007; Human Rights Watch, 'More Than a Name', supra n. 2 at 107; Abramowicz, supra n. 23 at 51; Committee on the Rights of the Child, Report on the 28th Session, CRC/C/111, 2001, at para. 727; Report of the Special Rapporteur on the right to education, Commission on Human Rights, 8 February 2006, E/CN.4/2006/45 at para. 113; and Report of the Special Rapporteur on the right to education, Commission on Human Rights, 11 January 2001, E/CN.4/2001/52 at para. 75. See for example Connolly, 'Poland to Ban Schools from Discussing Homosexuality', The Guardian, 20 March 2007. See also former section 28 of the UK Local Government Act 1988 which prohibited the promotion of homosexuality in schools. It was repealed on 21 June 2000 in Scotland, and on 18 November 2003 in the rest of the UK. See Amnesty International. supra n. 2 at 21. Human Rights Watch, 'Hated to Death', supra n. 2; Human Rights Watch, 'More Than a Name', supra n. 2; Report of the Special Rapporteur on the question of torture and other cruel. inhuman or degrading treatment or punishment, supra n. 7 at paras 17-25. Report of the Special Rapporteur on the question of torture and other cruel. inhuman or degrading treatment or punishment, Commission on Human Rights, 23 December 2003, E/CN.4/2004/56 at para. 64. Toonen vAustralia (488/1992), CCPR/C/50/D/488/1992 (1994); 1-3 IHRR 97 (1994) at para. 8.5; Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Commission on Human Rights, 16 February 2004, E/CN.4/2004/49 at para. 38; Narrain. 'The Articulation of Rights around Sexuality and Health: Subaltern Queer Cultures in India in the Era of Hindutva', (2004) 7 Health and Human Rights 2 at 152; Human Rights Watch, 'Uganda: State Homophobia Threatens Health and Human Rights'. Press Release, 23 August 2007. available at: http:// hrw.org/english/docs/2007/08/22/ugandal6729.htm [last accessed 15 February 2008]; and Human Rights Watch, 'More Than a Name', supra n. 2 at 109.

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'thing', 'it', or 'not a real man/woman'. 30 Intersex people have been subjected to involuntary surgeries in an attempt to 'correct' their genitals. 31 In the health-sector and elsewhere, same-sex relationships are frequently unrecognised and devalued, with same-sex partners denied a broad range of entitlements available to heterosexuals, such as the right to make medical decisions for an incapacitated partner, to visit a partner or partner's child in hospital. to inherit property or be involved in funeral arrangements when a partner dies, to have equal pension benefits, file joint tax returns, obtain fair property settlement if a relationship ends, or be recognised as a partner for immigration purposes.32 Those who seek to advocate for an end to such violations or affirm the human rights of persons of diverse sexual orientations or gender identities are particularly at risk: 33 Defenders [of the rights of lesbian, gay, bisexual. transgender and intersex persons (LGBTI)] have been threatened, had their houses and offices raided, they have been attacked, tortured, sexually abused, tormented by regular death threats and even killed. . .. In numerous cases from all regions, police or government officials are the alleged perpetrators of violence and threats against defenders of LGBTI rights. In several of these cases, the authorities have prohibited demonstrations, conferences and meetings, denied registration of organisations working for LGBTI rights and police officers have, allegedly, beaten up or even sexually abused these defenders of LGBTI rights. Although less tangible, perhaps even more systemic and far-reaching in consequence is the net result of such endemic human rights violations: the constant fear in which many persons of diverse sexual orientations and gender identities have to live. 34 As one man arrested and subsequently tortured following a police raid of a gay discotheque in Egypt noted: 'I used to think being gay 30

31

32

33 34

See, for example, Coalition for Lesbian and Gay Rights in Ontario, 'Systems Failure: A Report on the Experiences of Sexual Minorities in Ontario's Health-Care and Social-Services Systems' (1997) at 48; and Canadian HIV/AIDS Legal Network/Canadian AIDS Society, 'Gay and Lesbian Legal Issues and HIV/AIDS: Final Report' (1998) at 86. See Cabral. Statement to UN Commission on Human Rights, 61st session, Item 13: Rights of the Child, 14 March to 22 April 2005, available at: http://www.ilga.org/newsiesults. asp?LanguageID=l&FileCategory=6l&FileID=567 [last accessed 15 February 2008]; and Fact sheets of the Intersex Society of North America, available at http://www.isna.org/faq/ (last accessed 15 February 2008]. See, for example, Human Rights and Equal Opportunities Commission, 'Same-Sex: Same Entitlements, National Inquiry into Discrimination against People in Same-Sex Relationships', Australia, 2007, available at: www.humanrights.gov.au/humaniights/same sex/index.html [last accessed 15 February 2008]. Report of the Special Representative of the Secretary-General on human rights defenders, Human Rights Council, 24 January 2007. A/HRC/4/37 at paras 93-7. See, for example, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. supra n. 29 at para. 38: and Narrain, supra n. 29 at 148-50.

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was just part of my life and now I know it means dark cells and beatings: 35 Faced with obstacles to familial and social acceptance that may seem overwhelming, many lesbians, gays, bisexuals, transgender and intersex people remain invisible and isolated. The high rates of documented suicide by such people are consequently unsurprising. 36

2. Review of Law and Jurisprudence There is a growing jurisprudence and other law-related practice that identifies a significant application of human rights law with regard to people of diverse sexual orientations and gender identities. This phenomenon can be observed at the international level, principally in the form of practice related to the United Nations-sponsored human rights treaties, as well as under the European Convention on Human Rights. The development of this sexual orientation and gender identity-related human rights legal doctrine can be categorised as follows: (a) non-discrimination, (b) protection of privacy rights and, (c) the ensuring of other general human rights protection to all, regardless of sexual orientation of gender identity. In addition, it is useful to examine (d) some general trends in human rights law that have important implications for the enjoyment of human rights by people of diverse sexual orientations and gender identities. A. Non Discrimination

The practice of the bodies that monitor implementation of the United Nationssponsored human rights treaties relates to sexual orientation-related discrimination rather than to discrimination on the basis of gender identity. The Committee on Economic, Social and Cultural Rights (CESCR) has dealt with the matter in its General Comments, the interpretative texts it issues to explicate the full meaning of the provisions of the Covenant on Economic, Social and Cultural Rights. In General Comments Nos 18 of 2005 (on the right

35 36

As cited in Human Rights Watch, 'In a Time of Torture'. supra n. 2. Human Rights Watch, 'More Than a Name', supra n. 2 at 172-5; Kroll and Warneke, The Dynamics of Sexual Orientation and Adolescent Suicide: A Comprehensive Review and Developmental Perspective (Calgary: University of Calgary, 1995); Bagley and Tremblay, 'Suicidal Behaviours in Homosexual and Bisexual Males', in Bagley and Ramsay (eds), Suicidal Behaviours in Adolescent and Adults: Taxonomy, Understanding and Prevention (Brookfield, Vermont: Avebury: 1997): Quebec Human Rights Commission. 'De l'illegalite a l'egalite: Rapport de la consultation publique sur la violence et la discrimination envers !es gais et lesbiennes', May 1994 at 125: and Alternative Law Forum. 'Table of Lesbian Suicides', submitted to the Office of the High Commissioner for Human Rights as Annexure D of Universal Periodic Review submissions on India, December 2007.

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to work), 37 15 of 2002 (on the right to water) 38 and 14 of 2000 (on the right to the highest attainable standard of health), 39 it has indicated that the Covenant proscribes any discrimination on the basis of, inter-alia, sex and sexual orientation 'that has the intention or effect of nullifying or impairing the equal enjoyment or exercise of [the right at issue]'. The CESCR has consistently based this prohibition on the terms of the Covenant's anti-discrimination provision, Article 2.2, which lists invidious categories of discrimination as including 'sex' and 'other status'. Presumably, since the CESCR distinguishes 'sex' and 'sexual orientation' in its General Comments, it locates sexual orientation within the rubric of 'other status'. The CESCR, in the General Comments, also invokes the article addressing equal rights of men and women, Article 3, as a basis for its prohibition of sexual orientation-related discrimination. This linkage of the categories of sex and sexual orientation-related discrimination is discussed subsequently in the context of the practice of the Human Rights Committee (HRC). The Committee on the Rights of the Child (CRC) has also dealt with the issue in a General Comment. In its General Comment No. 4 of 2003, 40 it stated that. 'State parties have the obligation to ensure that all human beings below 18 enjoy all the rights set forth in the Convention [on the Rights of the Child] without discrimination (Article 2), including with regard to "race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status". These grounds also cover [inter alia] sexual orientation'. The CRC thus appears to adopt the same approach as the CESCR in locating sexual orientation within the category of 'other status'. Both the CESCR and the CRC very occasionally raise issues of sexual orientation-related discrimination in the Concluding Observations they adopt on the periodic reports submitted to them by States parties on their record of implementation of the treaties (CESCR: regarding eight of the 70 States considered between 2000 and 2006, CRC: regarding five of the 186 States considered in the same period). These Concluding Observations have a non-binding and flexible nature. As such, they are not always a useful indicator of what a Committee may consider to be a matter of obligation under the Covenant. Nevertheless, where the Committee expresses concern or makes a specific recommendation for correction of a practice, we can discern that serious 37 38 39 40

Committee on Economic, Social and Cultural Rights, General Comment No. 18: The right to work, E/C.12/GC/18, 24 November 2005. Committee on Economic, Social and Cultural Rights. General Comment No. 15: The right to water, E/C.12/2002/11, 26 November 2002. Committee on Economic. Social and Cultural Rights, General Comment No. 14: The right to the highest attainable standard of health, E/C.12/2000/4, 11 August 2000. Committee on the Rights of the Child, General Comment No. 4: Adolescent health and development in the context of the Convention on the Rights of the Child, 1 July 2003, CRC/GC/ 2003/4.

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issues under the treaty are at issue. 41 It is in this context that we may observe the CESCR's regret, in 2005, that Hong Kong's anti-discrimination legislation failed to cover sexual orientation-related discrimination 42 and its concern, in 2000, that Kyrgyzstan classified lesbianism as a sexual offence in its penal code. 43 The Committee on the Elimination of Discrimination against Women (CEDAW), notwithstanding that it has not addressed the matter in a General Comment or otherwise specified the applicable provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, on a number of occasions has criticised States for discrimination on the basis of sexual orientation. For example, it also addressed the situation in Kyrgyzstan and recommended that, 'lesbianism be reconceptualised as a sexual orientation and that penalties for its practice be abolished'.44 The Committee on the Elimination of Racial Discrimination (CERD) appears never to have engaged with issues of discrimination against persons who belong to both racial and sexual minority groups. This gap is startling when one considers the authoritative evidence of such persons facing forms of 'double discrimination', as reported, for instance, by the UN Human Rights Council's Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance. 45 Issues of sexual orientation have received the most extensive attention in the work of the monitoring body under the International Covenant on Civil and Political Rights. the HRC. In the individual communication, Toonen v Australia, in 1994, it considered that, 'the reference to "sex" in articles 2, paragraph 1. and 26 is to be taken as including sexual orientation'.46 The HRC thus decided that sexual orientation-related discrimination is a suspect category in terms of the enjoyment of Covenant rights (Article 2) and, more generally, for equality before and equal protection of the law (Article 26). The HRC has persistently observed, however, that discrimination on the basis of sexual orientation, as is the case for all the other discrimination categories listed in Articles 2 and 26, is not inherently invidious, since 'not every distinction 41 42 43 44 45 46

O'Flaherty; 'The Concluding Observations of United Nations Human Rights Treaty Bodies', (2006) 6 Human Rights Law Review 27. Concluding Observations of the Committee on Economic, Social and Cultural Rights regarding the People's Republic of China (including Hong Kong and Macau), 13 May 2005, E/C.12/1/ Add.107 at para. 78. Concluding Observations of the Committee on Economic, Social and Cultural Rights regarding Kyrgyzstan, 1 September 2000, E/C.12/1/Add.49 at para, 17. Concluding Observations of the Committee on the Elimination of Discrimination Against Women regarding Kyrgyzstan. 5 February 1999, A/54/38 at para. 128. Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance. Commission on Human Rights, 28 February 2006, E/CN.4/2006/16/Add.3 at para. 40. Toonen vAustralia, supra n. 29 at para. 8.7.

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amounts to prohibited discrimination under the Covenant, as long as it is based on reasonable and objective criteria'.47 The HRC, in individual communications subsequent to Toonen, while re-affirming the scope of the Article 2.1 and 26 provisions to embrace sexualorientation-related discrimination, has avoided specifying that this is by means of a reading of the term 'sex', albeit an individual concurring opinion of two HRC members in the case of Joslin v New Zealand, in 2002, categorically states that, 'it is the established view of the Committee that the prohibition against discrimination on grounds of "sex" in article 26 comprises also discrimination based on sexual orientation'.48 The apparent reliance on the 'sex' category has been criticised by the European Court of Justice, 49 on the basis that matters of sexual orientation are substantively different from binary men/ women issues which the category of 'sex' is often perceived to address. However, in support of the HRC's approach it may be recalled 50 that much discrimination based on sexual orientation or gender identity is directed against those who violate social or cultural conceptions of gender. Also, taking account of how sexual discrimination has an elevated status in the Covenant, being addressed also in Article 3, the reliance on the 'sex' category appears to elevate the suspect nature of sexual orientation-related discrimination to a higher level than that of the other listed categories. Perhaps it is with considerations such as these in mind that Jack Donnelly described the HRC's approach as 'radical and provocative'. 51 The approach adopted by the HRC has the additional merit of avoiding an invocation of the category of 'other status' in the absence of clearly established criteria for when a non-specified form of discrimination can be so designated. A small number of cases have illustrated the HRC's application of its nondiscrimination doctrine. In Young v Australia 52 and X v Colombia 53 the HRC impugned a distinction made in law between same-sex partners who were excluded from pension benefits, and unmarried heterosexual partners who were granted such benefits. In Joslin the denial of the right to marry to samesex couples was considered not to constitute a violation of Article 26. However, an individual concurring opinion of two members observed that the authors had not sought to identify any difference in treatment arising from their inability to marry and, 'the Committee's jurisprudence supports the 47 48 49 50 51

52 53

Young vAustralia (941/2000). CCPR/C/78/D/941/2000 (2003) at para.10.4. Joslin v New Zealand (902/1999), CCPR/C/75/D/902/1999 (2003): 10 IHRR 40 (2003). Grant v South West Trains Ltd C-249/96 [1998] ECR I-621; (1998) 1 CMLR 993. See discussion in the above Situational Analysis section of this article on the linkages between

violations based on sex. sexual orientation, gender identity and gender expression. Donnelly; 'Non-Discrimination and Sexual Orientation: Making a Place for Sexual Minorities in the Global Human Rights Regime' in Baehr et al. (eds), Innovation and Inspiration: Fifty Years of the Universal Declaration of Human Rights (Amsterdam: Royal Netherlands Academy of Arts and Sciences, 1999). Young v Australia, supra n. 47. Xv Colombia (1361/2005), CCPR/C/89/D/1361/2005 (2007).

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position that such differentiation may very well, depending on the circumstances of a concrete case, amount to prohibited discrimination'. 54 The breadth of the application of the HRC approach is best seen in its practice under the report review procedure. HRC frequently raises the issue of discrimination on the basis of sexual orientation: during the period 2000-06, it did so regarding 13 of the 84 countries under review. It criticised the criminalisation of homosexual sexual relations (multiple countries),55 a failure to prohibit employment-related discrimination, 56 failure to include the category of sexual orientation in broad anti-discrimination legal regimes (multiple countries), 57 a lack of education programmes to combat discriminatory attitudes58 and unequal ages of consent for sexual activity. 59 At the regional level, the European Court of Human Rights (ECtHR) has been invited to consider issues of discrimination with regard to both sexual orientation and gender identity. The ECtHR, while reiterating that the nondiscrimination provision of the European Convention on Human Rights (ECHR), Article 14, unlike Article 26 of the International Covenant on Civil and Political Rights, does not erect an autonomous anti-discrimination provision, but rather one that can only be applied in conjunction with a substantive provision of the ECHR (albeit it embraces those additional rights, falling within the general scope of any ECHR article, for which a State has voluntarily decided to provide),60 has consistently stated that differences based on sex and sexual orientation must 'have particularly serious reasons by way of justification'.61 And the ECtHR, and the former European Human Rights Commission, have not been concerned to identify whether the identification Joslin v New Zealand, supra n. 48. See, for example, Concluding Observations of the Human Rights Committee regarding Egypt, 28 November 2002, CCPR/C0/76/EGY at para. 19; and Concluding Observations of the Human Rights Committee regarding Kenya. CCPR/C0/83/KEN, 29 April 2005 at para. 27. 56 Concluding Observations of the Human Rights Committee regarding the United States of America, 18 December 2006, CCPR/C/USA/C0/3/Rev.l at para. 25. 57 See, for example, Concluding Observations of the Human Rights Committee regarding Trinidad and Tobago, 3 November 2000, CCPR/C0/70/TTO at para. 11; Concluding Observations of the Human Rights Committee regarding El Salvador, 22 July 2003, CCPR/ C0/78/SLV at para. 16; Concluding Observations of the Human Rights Committee regarding the Philippines, 1 December 2003, CCPR/C0/79/PHL at para. 18; Concluding Observations of the Human Righls Committee regarding Namibia, 30 July 2004. CCPR/C0/81/NAM al para. 22; and Concluding Observations of the Human Rights Committee regarding Poland, 2 December 2004, CCPR/C0/82/POL at para. 18. 58 Concluding Observations of the Human Rights Committee regarding the Philippines, ibid. at para, 18. 59 Concluding Observations of the Human Rights Committee regarding Austria, 19 November 1998, CCPR/C/79/Add.103 at para. 13. 60 See Case relating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistics case) (No. 2) A 6 (1968); (1979-80) 1 EHRR 252 at para. 9; Abdulaziz. Caba/es and Balkandali v United Kingdom A 94 (1985); (1985) 7 EHRR 471 at para. 78; and Stec and Others v United Kingdom (2005) 41 EHRR SE 18. Compare Protocol No. 12 to the ECHR. ETS No. 117. which entered into force on 1 April 2005 and creates a free-standing right to non-discrimination. 61 Karner vAustria 2003-IX 199; (2003) 38 EHRR 24.

54 55

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of such forms of suspect discrimination derives from the categories of 'sex', 'other status' or otherwise.62 In Salgueiro da Silva Mouta v Portugal the ECtHR held that a judge's denial of child custody to a homosexual father on the grounds of his sexual orientation created a discriminatory enjoyment of privacy.63 In Karner v Austria the ECtHR was of the view that the failure of Austria to permit a homosexual man to continue occupying his deceased partner's flat was discriminatory, since this right, enjoyed by other family members under Austrian law, did not apply to same-sex partners. Although the government claimed that excluding homosexuals aimed to protect 'the family in the traditional sense', the ECtHR held Austria had not demonstrated how the exclusion was necessary to that aim. 64 In L. and V. v Austria65 and S.L. v Austria 66 the ECtHR considered that Austria's differing age of consent for heterosexual and homosexual relations was discriminatory; it 'embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority', which could not 'amount to sufficient justification for the differential treatment any more than similar negative attitudes towards those of a different race, origin or colour'.67 One instance in which a discrimination-based claim failed was that in Pretti v France. In this case a homosexual man argued that a refusal to allow him to adopt a child for reasons of his sexual orientation constituted a violation of the ECHR. 68 In finding against him, the ECtHR referred to the fast evolving and very diverse practice across Europe as well as the conflicting views of experts as to what would be in the best interests of the child. The judgment is problematic. The reasoning is inconsistent and posits false dilemmas such as a supposed tension between the rights of the man and the child. There is no such tension. The tension is between the rights of homosexual and heterosexual prospective adoptive parents, with the rights of the child, especially its best interests, always being paramount. Issues such as these were handled in a more consistent and comprehensible manner in the very recent decision in E.B. v France. The ECtHR, while assiduously maintaining the paramount principle of the best interests of the child, held that 'in rejecting the applicant's application for authorisation to adopt, the domestic authorities made a distinction based on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention'.69 It is unclear how far a non-discrimination approach can go in terms of the regulation of practices of non-state actors, not least since the existing 62 63 64 65 66 67 68 69

Sutherland v United Kingdom Application No. 25186/94. Report of 1 July 1997 at para. 50. Salgueiro da Silva Mouta v Portugal 1999-IX 309; (1999) 31 EHRR 1055. Kamer v Austria. supra n. 61 at paras 39-41. L. and V. v Austria 2003-I 29; (2003) 36 EHRR 55. S.L. vAustria 2003-I 71; (2003) 37 EHRR 39. L. and V. vAustria, supra n. 65; and S.L. vAustria, ibid. at para. 44. Frette v France 2002-I 345; (2004) 38 EHRR 21. E.B. v France Application No. 43546/02, Judgment of 22 January 2008 at para. 96.

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jurisprudence and practice only addresses instances of discrimination that fall clearly within well established jurisprudential limits, Taking account of the extensive literature on the subject of the reach of anti-discrimination law into the private sphere, the applicable principles are well-articulated by Jack Donnelly: '[T]he internationally recognized human right to non-discrimination prohibits invidious public (or publicly supported or tolerated) discrimination that deprives target groups of the legitimate enjoyment of other rights. , .. Only when ... social contacts systematically influence access to economic or political opportunities do they become a matter of legitimate state regulation: 70

B. Protection of Privacy Rights The first successful international human rights cases on issues of sexual orientation were taken under the ECHR and concerned the privacy of same-sex sexual relations. In Dudgeon v United Kingdom 71 and Norris v Ireland, 72 the criminalisation of such practices was deemed a violation of the privacy protection in Article 8 of the ECHR. In Modinos v Cyprus the ECtHR again held that such a law violated the right to privacy, and maintained that even a 'consistent policy' of not bringing prosecutions under the law was no substitute for full repeal. 73 Privacy arguments were also successfully invoked in cases concerning a ban on recruitment to the military of homosexuals: Smith and Grady v United Kingdom 74 and Lustig-Prean and Beckett v United Kingdom. 75 The ECtHR has also recognised privacy protection under the ECHR for transsexual persons. In Goodwin v United Kingdom 76 and I. v United Kingdom 77 it considered the cases of two transsexual women who claimed that the United Kingdom's refusal to change their legal identities and papers to match their post-operative genders constituted discrimination. Reversing a number of its previous decisions, the ECtHR held that their right to respect for their private lives, and also their right to marry, had been violated (Articles 8 and 12 of the ECHR). In Van Kuck v Germany 78 the ECtHR considered the case of a transsexual woman whose health-insurance company had denied her reimbursement for costs associated with sex-reassignment surgery and who had unsuccessfully sought redress in the domestic courts. It found violations of the right to a fair hearing (Article 6(1) of the ECHR) and of the right to private life, holding that the German civil courts had failed to respect 'the applicant's freedom to define 70 71 72 73 74 75 76 77 78

Donnelly, supra n. 51. Dudgeon v UK A 45 (1981); (1982) 4 EHRR 149. Norris v Ireland A 142 (1988); (1988) 13 EHRR 186. Modinos v Cyprus A 259 (1993); (1993) 16 EHRR 485. Smith and Grady v United Kingdom 1999-VI 45; (1999) 29 EHRR 493. Lustig-Prean and Beckett v United Kingdom (1999) 29 EHRR 548. Goodwin v United Kingdom (2002) 35 EHRR 18. I. v United Kingdom (2003) 36 EHRR 53. Van Krick v Germany 2003-VII 1: (2003) 37 EHRR 51.

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herself as a female person, one of the most basic essentials of self-determination'. In a powerful statement of the entitlement to an autonomous gender identity the ECtHR spoke of 'the very essence of the ECHR being respect for human dignity and human freedom, protection is given to the right of transsexuals to personal development and to physical and moral security'. 79 In L. v Lithuania, the ECtHR considered that the State was required to legislate for the provision of full gender-reassignment surgery whereby a person in the 'limbo' of partial reassignment could complete the process and be registered with the new gender identity. 80 The HRC, in Toonen, adopted the Dudgeon/Norris approach in finding a violation by Australia of Article 17 of the Covenant. It considered that a criminal prohibition on same-sex sexual activity, even if unenforced, constituted an unreasonable interference with Mr Toonen's privacy.81 The HRC has not had the occasion since, in its consideration of individual cases, to address other applications of the right to privacy in the context of sexual orientation or gender identity. One possible opportunity, in Joslin, was missed since Ms Joslin was unsuccessful in arguing the primordial claim that Article 23 of the Covenant on marriage extended protection to same-sex relationships on the same basis as heterosexual relationships.82 Nor has the HRC taken the opportunity to itself explore the range of applications of a privacy approach in the context of its review of periodic reports. Here it has addressed privacy rights exclusively in the context of the criminalisation of same-sex sexual activity (as is the case, also, in CESCR, CEDAW and CRC). Taking account of the relatively vigorous and wide-ranging engagement with privacy issues in the European context, this dearth of practice is notable. It may reflect unease with the issues on the part of the treaty bodies or a failure of civil society groups to bring situations of concern to their attention. C. The Ensuring of Other General Human Rights Protection to All,

Regardless of Sexual Orientation of Gender Identity In 2006, during the HRC's consideration of a periodic report, a representative of the State party, while replying to a question of a committee member on police violence against transsexuals, 83 observed that there was no mention of such people in the Covenant. The inference seemed to be that these people had a lesser entitlement to protection. Any such view is, of course, untenable. The HRC and the other treaty bodies, in the review of periodic reports, on a number of occasions, have insisted on the entitlement of people of diverse 79 80 81 82 83

Ibid. at para. 69. L. v Lithuania Application No. 27527/03, Judgment ofll September 2007. Toonen 11 Australia, supra n. 29 at para. 8.2. Joslin v New Zealand, supra n. 48 at paras 8.1-8.3. The question had been put by the first author of the present article.

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sexual orientations and gender identities to benefit from the protection of human rights of general application. The HRC has addressed various aspects: 'violent crime perpetrated against persons of minority sexual orientation, including by law enforcement officials [and] the failure to address such crime in the legislation on hate crime';84 '[t]he State party should provide appropriate training to law enforcement and judicial officials in order to sensitive them to the rights of sexual minorities';85 '[t]he Committee expresses concern at the incidents of people being attacked, or even killed, on account of their sexual orientation (art.9), at the small number of investigations mounted into such illegal acts'. 86 The CRC has expressed concern that homosexual and transsexual young people 'do not have access to the appropriate information, support and necessary protection to enable them to live their sexual orientation'. 87 The practice of the Committee Against Torture (CAT) is also notable. On a number of occasions it has expressed concern about the torture of homosexuals (for instance, Argentina 88 and Egypt89 ), and, in 2002, regarding, 'complaints of threats and attacks against sexual minorities and transgender activists' in Venezuela.90 The proceedings of the Special Procedures of the former UN Human Rights Commission and the current Human Rights Council constitute a valuable repository of examples of the application for people of diverse sexual orientations and gender identities, of general human rights protections, as well as of the principle of non-discrimination. The Working Group on Arbitrary Detention has frequently invoked Toonen as a basis for its finding of arbitrary detention of homosexuals. The Special Representative of the SecretaryGeneral on the situation of human rights defenders has been assiduous in condemning the intimidation of and attacks on lesbian, gay, bisexual, transgender and intersex activists. 91 She has drawn attention to such human rights violations as arbitrary detention, torture, summary execution, arbitrary and unreasonable impediments to freedom of expression, movement, association and participation in political and public life. 84 85 86 87 88 89 90 91

Concluding Observations of the Human Rights Committee regarding the United States of America, supra n. 56. Concluding Observations of the Human Rights Committee regarding Poland, supra n. 57 at para.18. Concluding Observations of the Human Rights Committee regarding El Salvador, supra n. 57 at para.16. Concluding Observations of the Committee on the Rights of the Child regarding the United Kingdom, 9 October 2002, CRC/C/15/Add.188 at para. 43. Concluding Observations of the Committee against Torture regarding Argentina, 10 December 2004, CAT/C/CR/33/1 at para. 6(g). Concluding Observations of the Committee against Torture regarding Egypt, 23 December 2002, CAT/C/CR/29/4 at para. S(e). Concluding Observations of the Committee against Torture regarding Venezuela, 23 December 2002, CAT/C/CR/29/2 at para. lO(d). Report of the Special Representative of the Secretary-General on human rights defenders, Commission on Human Rights, 22 March 2006, E/CN.4/2006/95/Add.l at para. 290.

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The Special Representative has referred to the phenomenon of multiple victimisation, where already vulnerable people face heightened risk when promoting the rights of people of diverse sexual orientations and gender identities. In 2002, she reported about women human rights defenders as follows: 'women human rights defenders are paying a heavy toll for their work in protecting and promoting the human rights of others. . .. For women human rights defenders standing up for human rights and the victims of human rights abuses - be they migrants, refugees, asylum-seekers or political activists, or simply people unwillingly relegated to the margins of society, such as ex-offenders and member of sexual minorities - can result in intimidation, harassment, unfair dismissal, death threats, torture and ill-treatment, and even death'. 92 A similar point was made by the Independent Expert on minority issues, who referred to the 'multiple forms of exclusion' of members of minority communities, 'based on aspects of their identities and personal realities such as sexual orientation or gender expression that challenge social or cultural norms'. 93 The Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, has drawn attention to problems within racial minority groups: '[b]lack homosexuals suffer from double discrimination, because of their colour and sexual orientation'.94 Among the other Special Procedures that have engaged with the issues are those on extrajudicial, summary or arbitrary executions: torture and other cruel, inhuman or degrading treatment or punishment; freedom of religion; promotion and protection of the right to freedom of opinion and expression; violence against women; and sale of children, child prostitution and child pornography. Those Special Procedures that address issues of economic, social and cultural rights have frequently drawn attention to the extent to which violations of these rights are at issue for people of diverse sexual orientations and gender identities. The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health has drawn wide-ranging consequences from his analysis of the state of international human rights law. For instance. in 2004, he observed that 'fundamental human rights principles, as well as existing human rights norms, lead ineluctably to the recognition of sexual rights as human rights. Sexual rights include the right of all persons to express their sexual orientation, with due regard

92 93 94

Report of the Special Representative of the Secretary-General on human rights defenders. Commission on Human Rights, 27 February 2002, E/CN.4/2002/106 at para. 83. Report of the independent expert on minority issues, Commission on Human Rights, 6 January 2006. E/CN.4/2006/74 at paras 28 and 42. Report of the Special Rapporteur on contemporary forms of racism. racial discrimination, xenophobia and related intolerance, supra n. 45 at para. 40.

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for the well-being and rights of others, without fear of persecution, denial of liberty or social interference'. 95 The regional level has also presented instances of attention by human rights mechanisms and procedures to sexual orientation and gender identity-related issues of the general application of human rights. For instance, country reports and follow-up reports of the Inter-American Commission on Human Rights have drawn attention to such violations as 'social-cleansing' (killing) of homosexuals and the treatment of lesbian prisoners.96 The current Council of Europe Commissioner for Human Rights, Thomas Hammarberg, repeatedly addresses country-level sexual orientation-related concerns. His detailed and expansive treatment of such issues in a 2007 'memorandum' to the Polish government is noteworthy. 97 The question arises of when a generally stated human right is actually limited in terms of who may benefit. For our purposes, the issue concerns when a right exclusively addresses the situation and choices of what we might term sexual majorities. The matter has been considered with regard to the right to marry. The HRC, in Joslin, stated that the 'use of the term "men and women" rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23. paragraph 2 of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other'.98 It is less clear whether the Covenant recognises the rights of same-sex unmarried families. Article 23, paragraph 1 states the fundamental importance of the family and its entitlement to protection by the State, without reference to the form of family under consideration. Only in Article 23 paragraph 2 do we find reference to the right of men and women to marry and found families. It does not follow, however, that Article 23 paragraph 2 restricts the meaning of the word 'family' in Article 23 paragraph 1, and in this regard it may be observed that in its General Comment No. 19, the HRC has acknowledged the existence of various forms of 95 96

97

98

Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, supra n. 34 at para. 54. Annual report of the Inter-American Commission on Human Rights 2006. Chapter III C (1), OEA/Ser.L/V/11.127, Doc. 4 rev. l, 3 March 2007, at para. 29; Fifth report on the situation of human rights in Guatemala, Chapter V (Right to Life), Inter-American Commission on Human Rights, OEA/Ser.L/V/11.111, Doc. 21 rev., 6 April 2001; Third report on the situation of human rights in Paraguay, Chapter VIII (Women's rights). Inter-American Commission on Human Rights, OEA/Ser.L/V/11.110, Doc. 52, 9 March 2001, at paras 47-8; and Second report on the situation of Human Rights in Colombia. Chapter VII (Right to life). Inter-American Commission on Human Rights, OEA/Ser.L/V/11.84, Doc. 39 rev., 14 October 1993. Memorandum to the Polish Government. Council of Europe Commissioner for Human Rights, CommDH(2007)13, 20 June 2007, available at: https://wcd.coe.int/ViewDoc.jsp? id=ll55005&Site=CommDH&BackColorlnternet=FEC65B&BackColorlntranet=FEC65B& BackColorLogged=FFC679 [last accessed 15 February 2008]. Joslin v New Zealand, supra n. 48 at para. 8.2.

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family. 99 The HRC has been willing to impugn State practices that impede same sex couples from benefiting from family-related benefits, such as transfer of pension entitlements (Young and X, referred to before). These cases, however, only addressed Article 26-based issues and, in X, in a dissenting opinion of two members, it was observed that 'a couple of the same sex does not constitute a family within the meaning of the Covenant and cannot claim benefits that are based on a conception of the family as comprising individuals of different sexes'. 100 The ECtHR, in a number of cases, had held that marriage, for purposes of the ECHR is the union of two persons of the 'opposite biological sex' 101 but, in Goodwin, it indicated that the determination of sex cannot be undertaken with solely biological criteria, so that an individual who has had a sex change operation has a right to marry someone of the now opposite sex. 102 While not specifically addressing the issue of any distinction between families and marriages, the ECtHR has frequently indicated that homosexual stable relationships are not equivalent in rights to heterosexual relationships. 103 However, in the Salguiero da Silva Mouta case, the ECtHR found a violation of the right to family life of a man in a homosexual relationship, albeit the family unit under consideration was that of the man and his daughter rather than that of him and his partner.104 And, in Goodwin. the ECtHR was willing to interpret the term in Article 8 of the ECHR, 'the right of a man and a woman to marry' in a flexible manner taking account of changes in society. 105 It is beyond the scope of the present article to explore this issue further, other than to take account of the various other sources which lean towards flexible understanding of the term 'family',106 as well as the increasing recognition by States of diversity of family forms, as reflected in the Declaration on the International Year of the Family.107 99 Human Rights Committee, General Comment No. 19: Protection of the family. the right to marriage and equality of the spouses, HRI/GEN/1/Rev.l, 27 June 1990. 100 X v Colombia, supra n. 53. 101 See, for example, Sheffield and Horsham v United Kingdom (1999) 27 EHRR 163. 102 Goodwin v United Kingdom, supra n. 76 at para. 100. 103 See the citations and discussion in Walker, 'Moving Gaily Forward? Lesbian, Gay and Transgender Human Rights in Europe', (2001) 2 Melbourne Journal of lnternational Law 122. 104 Salgueiro da Silva Mouta v Portugal, supra n. 63. 105 Goodwin v United Kingdom, supra n. 76 at paras 98-104. 106 See, for example, Committee on the Rights of the Child, Day of General Discussion on 'Children without Parental Care', 40th session, Geneva. 12-30 September 2005. CRC/C/153 at para. 644; Minister of Home Affairs and another v Fourie and another, South African Constitutional Court, Case CCT 60/04, 1 December 2005, at para. 101, available at: http:// news.findlaw.com/wp/docs/glrts/mhafouriel20105.pdf [last accessed 15 February 2008]. 107 See GA Res. 44/82, International Year of the Family, 8 December 1989, A/RES/44/82, which in para. 3 refers to 'the main recommendations, objectives and principles for the observance of the Year, as contained in the comprehensive outline of a possible programme for the Year'. These principles stipulate that 'families assume diverse forms and functions among and within countries', see Report of the Secretary-General on the Observance of the International Year of the Family, UN General Assembly, 6 September 1995, A/50/370

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D. Some General Trends in Human Rights Law that Have Important

Implications for the Enjoyment of Human Rights by People of Diverse Sexual Orientations and Gender Identities

An examination of the human rights of people of diverse sexual orientations and gender identities would be incomplete without a brief reference to the evolving understanding of the duties that fall to States and the entitlements of the rights holder. Reference has already been made to those wide-ranging aspects of the human rights obligations that have been charted by the UN Special Procedures. Of more immediate normative significance are those recent General Comments of the United Nations human rights treaty bodies108 that have emphasised that States are obliged to undertake effective programmes of education and public awareness about human rights and must otherwise seek to enable people to fully enjoy their entitlements. They must be assiduous in protecting rights, establishing appropriate monitoring and promotional institutions, as well as investigating and disciplining violations. Victims of human rights violations are entitled to redress and reparation and those who defend and promote human rights must be protected. More generally. the programmatic implications of the duty that falls on States are being clarified within the context of the theory and practice of the human rights-based approaches to development (RBAD). The principal elements of the rights-based approach have been indicated in a statement of a common position of all of the UN agencies engaged in the work of human development, the Statement of Common Understanding, adopted at Stamford, Connecticut, USA (the Stamford Statement) in May 2003. 109 The Stamford Statement asserts that all programmes of development co-operation, policies and technical assistance should further the realisation of human rights as laid down in the Universal Declaration of Human Rights (UDHR) and other international human rights instruments and that development co-operation contributes to the development of the capacity of 'duty-bearers' 110 to meet at para. 14. See also: UN General Assembly, Celebration of the tenth anniversary of the International Year of the Family and beyond, 25 January 2005, A/RES/59/147 at preambulatory para. 2. 108 Human Rights Committee, General Comment No. 31: Nature of the general legal obligation imposed on States Parties to the Covenant, CCPR/C/21/Rev.l/Add.13, 26 May 2004; Committee on Economic, Social and Cultural Rights. General Comment No. 3: The nature of States parties obligations, E/1991/23, 14 December 1990; Committee on Economic, Social and Cultural Rights, General Comment No. 9: The domestic application of the Covenant, E/C.12/ 1998/24. 3 December 1998; and Committee on the Rights of the Child, General Comment No. 5: General measures of implementation of the Convention on the Rights of the Child, CRC/ GC/2003/5, 27 November 2003. 109 Report of the Second Interagency Workshop on Implementing a Human Rights-Based Approach in the Context of UN Reform. Stamford Connecticut 5-7 May 2003. available at: http://www.undg.org/archive.docs/4128-Humanllights.Workshop.StamforcLFinaLReport.doc [last accessed 15 February 2008]. llO See O'Flaherty, 'Keynote address' to Our Rights. Our Future: Human Rights Based Approaches in Ireland, Amnesty International Conference. Dublin. 27 September 2005.

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their obligations and/or of 'rights-holders' to claim their rights. The Statement identifies a number of elements which it considers as 'necessary, specific and unique to a RBAD: (i) Assessment and analysis in order to identify the human rights claims of rights-holders and the corresponding human rights obligations of duty-bearersm as well as the immediate, underlying, and structural causes of the non-realisation of rights. (ii) Programmes assess the capacity of rights-holders to claim their rights and of duty-bearers to fulfil their obligations. They then develop strategies to build these capacities. (iii) Programmes monitor and evaluate both outcomes and processes guided by human rights standards and principles. (iv) Programming is informed by the recommendations of international human rights bodies and mechanisms'. Of most direct interest for the present discussion are the principles derived from human rights law which are identified as integral to a RBAD. These are described in the Stamford Statement to be: universality and inalienability; inter-dependedness and inter-relatedness; non-discrimination and equality; participation and inclusion; and accountability and the rule of law. This elaboration in General Comments as well as in RBAD theory of the nature of human rights entitlements and duties has obvious implications for the human rights of people of diverse sexual orientations and gender identities. They can, as a matter of right, demand that the promotion and protection of their rights be undertaken in a vigorous, consistent and comprehensive manner. They are entitled to have their welfare and well-being placed at the heart of the state's policy making and public programming. Moreover, they have the right to be participants in the elaboration and implementation of such policies and programmes. Indeed, one can, without hyperbole, refer as a matter of law to the human right of all persons, regardless of and in full respect for their sexual orientations and gender identities, to live honoured and dignified lives within society.

3. Impact of the Law and Jurisprudence for the Protection of the Human Rights of People of Diverse Sexual Orientations and Gender Identities Notwithstanding the extent to which applicable legal standards have been clarified and articulated, the response of States and intergovernmental organisations to human rights violations based on sexual orientation or gender 111 Ibid.

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identity has been equivocal and inconsistent. The Special Representative of the Secretary General on human rights defenders has expressed concern at the 'almost complete lack of seriousness' with which human rights violations based on sexual orientation or gender identity are treated by the concerned authorities.112 The High Commissioner for Human Rights has noted the 'shameful silence' surrounding such violations and the fact that 'violence against LGBT persons is frequently unreported, undocumented and goes ultimately unpunished'.113 A number of States do not acknowledge that human rights violations based on sexual orientation or gender identity constitute legitimate areas of human rights concern. For example, a letter distributed to all State Missions in Geneva by Pakistan on behalf of the Organization of the Islamic Conference asserted that 'sexual orientation is not a human rights issue'. 114 When criticised by the Special Rapporteur on extrajudicial executions for maintaining the death penalty for homosexuality, 115 Nigeria responded that 'the death penalty by stoning under Shari'a law for unnatural sexual acts ... should not be equated with extrajudicial killings, and indeed should not have featured in the report'.116 Similarly, the United Republic of Tanzania opposed granting UN accreditation to non-governmental organisations (NGOs) working to address human rights violations based on sexual orientation, on the grounds that such matters were 'not relevant to our work'.11 7 NGOs working on issues of sexual orientation and gender identity have faced challenges to their participation in UN activities. At the UN General Assembly Special Session on HIV/AIDS in June 2001, a representative of the International Gay and Lesbian Human Rights Commission had been chosen, along with other representatives from governments, NGOs and UN agencies, to participate in an official roundtable discussion on HIV/AIDS and human rights. Following objections from a number of States, she was excluded and

112 Report of the Special Representative of the Secretary-General on human rights defenders, supra n. 33 at para. 95. 113 Presentation of the United Nations High Commissioner for Human Rights Ms Louise Arbour to the International Conference on Lesbian, Gay. Bisexual and Transgender Rights. Montreal, 26 July 2006, available at: http://www.unhchr.ch/huricane/huricane.nsf/view01/ B91AE52651D33FODC12571BE002Fl72C?opendocument [last accessed 15 February 2008]. 114 Letter from the Ambassador and Permanent Representative of the Permanent Mission of Pakistan, Geneva, 26 February 2004. 115 ARC International, 'Recognizing Human Rights Violations Based on Sexual Orientation and Gender Identity at the Human Rights Council. Session 2 ', 18 September - 6 October 2006, available at: http://www.arc-international.net/HRC2report.html [last accessed 15 February 2008]. 116 Ibid. 117 See notes of meeting, ECOSOC. July 2006. on file with the second author of the present article. See also: United Nations Information Service. 'Economic and Social Council Takes Action on Texts Concerning Consultative Status of Non-Governmental Organizations'. Press Release, ECOSOC/6231, 25 July 2006, available at: http://www.unis.unvienna.org/unis/pressrels/2006/ ecosoc6231.html [last accessed 15 February 2008].

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only allowed to take the floor after debate and vote in the General Assembly_ll 8 The same year, the International Lesbian and Gay Association, along with hundreds of other NGOs, sought accreditation to the United Nations World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance. Following an objection by Malaysia on behalf of the Organization of the Islamic Conference, its accreditation was put to a vote, resulting in a 43-43 tie and the denial of accreditation. 119 The NGO Committee of the UN Economic and Social Council (ECOSOC) has persistently denied UN consultative status to NGOs working on issues of sexual orientation and gender identity, a decision seemingly inconsistent with an ECOSOC resolution requiring that the 'full diversity of non-governmental organisations' be taken into account when determining matters of accreditationY 0 Such status governs whether NGOs can participate in UN activities, including by accessing UN premises, attending international meetings, submitting written statements, making oral interventions and hosting parallel panel discussions. The plenary ECOSOC has reviewed and overturned these rejections,121 although in subsequent meetings the NGO Committee has continued to defer or deny applications submitted by NGOs working on these issues, with the result that NGOs seeking to address matters of sexual orientation or gender identity must continue to fight for the recognition routinely granted to NGOs working on other issues. States that have sought to promote the human rights of people of diverse sexual orientations and gender identities in international fora have also faced difficulties. When Brazil presented a resolution at the former UN Commission on Human Rights in 2003 condemning human rights violations based on sexual orientation, States opposed to consideration of the resolution brought a 'no action' motion in an attempt to prevent the Commission from considering the issue. When the motion was narrowly defeated, these States threatened to bring hundreds of amendments to the text, resulting in a decision by the Commission to defer the resolution until 118 Rothschild, supra n. 10 at 111-2; and Sanders, 'Human Rights and Sexual Orientation in International Law', 23 November 2004 at 23-5, available at: http://www.ai-lgbt.org/resources. other.htm [last accessed 15 February 2008]. 119 Sanders, ibid. at 25. 120 ECOSOC Res. 1996/31. 25 July 1996 at preambulatory para. 4. See also GA Res. 60/251. 3 April 2006, establishing the Human Rights Council, which affirms the importance of NGO involvement in the work of the Council. 121 In 2006, the ECOSOC agreed to reject the application of the International Lesbian and Gay Association (ILGA), but overturned the denial of status to three other NGOs: Danish National Association for Gays and Lesbians, the Lesbian and Gay Federation in Germany and ILGA-Europe. In 2007, the ECOSOC overturned the denial of status, granting accreditation to the two applicant NGOs, Coalition gaie et lesbienne du Quebec and the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights. See United Nations Information Service, 'NGO Committee Recommends Three Organizations for Special Consultative Status with Economic and Social Council', Press Release, ECOSOC/6254 NGO/ 615, 31 January 2007, available at: http://www.un.org/News/Press/docs/2007/ecosoc6254.doc.htm [last accessed 15 February 2008].

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its 2004 session. 122 At the 2004 session, Brazil was pressured to further defer consideration of the resolution, indicating in a press release that it had 'not yet been able to arrive at a necessary consensus'.12 3 A statement of the Chair was adopted, carrying the resolution over until 2005. In 2005, Brazil did not proceed with the resolution, which therefore lapsed on the Commission agenda. Although ultimately not pursued, the Brazilian resolution on sexual orientation and human rights did raise States' awareness of the issues, and mobilised NGOs from all regions to engage in UN processes.124 When it became apparent that the resolution would not be discussed in 2005. New Zealand delivered a joint statement on sexual orientation and human rights on behalf of a crossregional grouping of 32 States, 125 asserting that States 'cannot ignore' the evidence of human rights violations based on sexual orientation, and calling for the Commission to respond. By the December 2006 session of the Human Rights Council, support for a similar joint statement delivered by Norway had grown to 54 States, from four of the five UN regions. 126 This statement acknowledged that the Council had received extensive evidence of human rights violations based on sexual orientation and gender identity, commended the work of NGOs, Special Procedures and treaty bodies in this area, called upon all Special Procedures and treaty bodies to integrate consideration of human rights violations based on sexual orientation and gender identity within their relevant mandates, and urged the President of the Council to allocate time for a discussion of these issues at an appropriate future session. The Norwegian joint statement also represented the first time that 'gender identity' had been included in a UN statement. Some recognition of these concerns had already been articulated in UN resolutions, although this has thus far been limited to resolutions addressing matters of extrajudicial executions and the death penalty, rather than the full range of human rights violations identified by the Special Procedures. The 122 Report on the 59th session, Commission on Human Rights, 17 March - 24 April 2003, E/CN.4/ 2003/135 at paras 575-85. 123 Press Release, Permanent Mission of Brazil to the United Nations, Geneva, 29 March 2004. 124 See, for instance, ILGA, 'ICFTU, The International Confederation of Free Trade Unions Supports the Brazilian Resolution', Press Release, 2 June 2004; African rapport, 'Campaign in Support of the Brazilian Resolution 2005 ', 6 February 2005. ILGA, in collaboration with other NGOs started a campaign in 2003 and 2004 to support the Brazilian resolution. For a summary of the activities, see 'ILGA - Supporting the Brazilian resolution', 4 June 2004, available at: http://www.ilga.org/newsresults. asp?LanguageID=l &FileCategory=44&ZoneID= 7& FileID=lSl [last accessed 15 February 2008]. 125 Statement made by New Zealand on behalf of 32 States under agenda Item 17: Promotion and protection of human rights. Commission on Human Rights. 61st session, 14 March 22 April 2005, available at: http://www.mfat.govt.nz/Media-and-publications/Media/MFATspeeches/2005/0-15-Apri1-2005a.php [last accessed 15 February 2008]. 126 Norwegian joint statement on human rights violations based on sexual orientation and gender identity. Human Rights Council. 3rd session, Geneva. 1 December 2006, available at: http://uklgig.org. uk/docs/Norwegian..Joint.Statement-UNHRC.06.doc [last accessed 15 February 2008].

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former Commission on Human Rights adopted a resolution on extrajudicial executions in each of 2000, 2002, 2003, 2004 and 2005, expressly affirming the obligation of States to 'protect the inherent right to life of all persons under their jurisdiction' and calling upon States to investigate promptly and thoroughly 'all cases of killings including those ... committed for any discriminatory reason, including sexual orientation'. 127 'Gender identity' was also included in a draft of this resolution in 2005, and received widespread support, representing the first time that language to explicitly protect the rights of transgender people has been presented in a UN forum, although the reference was removed from the text by sponsoring States before the resolution came to a vote in order to ensure adoption of the resolution. The resolution on the death penalty, adopted each year by the former Commission, recalled that the death penalty may not be imposed for any but the 'most serious crimes', and called upon States 'to ensure that the notion of "most serious crimes" does not go beyond intentional crimes with lethal or extremely grave consequences and that the death penalty is not imposed for non-violent acts such as ... sexual relations between consenting adults'.128 Although, as already noted, a number of Special Procedures have consistently addressed relevant sexual orientation and gender identity issues falling within their mandate,129 practice, overall, is inconsistent. During the Interactive Dialogue at the September 2006 session of the Human Rights Council, for example, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression indicated that the question of sexual orientation 'was not debated' when his mandate was created, and he appeared to believe he required more explicit authorisation before addressing human rights violations on this ground. 130 Similarly, although a number of the treaty bodies regularly address issues of sexual orientation and gender identity, and engage States in discussion of these issues during consideration of country reports, there is a great deal of room for them to integrate these issues more systematically within consideration of State reports, Concluding Observations and General Comments.

127 CHR Resolution, 20 April 2005, E/CN.4/RES/2005/34 at para. 5; CHR Resolution, 19 April 2004, E/CN.4/RES/2004/37 at para 6; CHR Resolution, 24 April 2003, E/CN.4/RES/2003/53 at para. 5; CHR Resolution, 22 April 2002, E/CN.4/RES/2002/36 at para 6; and CHR Resolution, 20 April 2000, E/CN.4/RBS/2000/31 at para. 6. 128 CHR Resolution, 20 April 2005, E/CN.4/RES/2005/59 at para. 7(f); CHR Resolution, 21 April 2004, E/CN.4/RES/2004/67 at para. 4(f); CHR Resolution, 25 April 2003, E/CN.4/RES/2003/ 67 at para 4(d); and CHR Resolution, 25 April 2002, E/CN.4/RES/2002/77 at para 4(c). 129 See International Commission of Jurists, supra n. 2 at 48-156. 130 Statement of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Interactive Dialogue, Human Rights Council, 2nd session, 8 September - 6 October 2006.

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4. The Yogyakarta Process The High Commissioner for Human Rights, Louise Arbour, has expressed concern about the inconsistency of approach in law and practice. In an address to a lesbian, gay, bisexual and transgender forum, she suggested that although the principles of universality and non-discrimination apply to the grounds of sexual orientation and gender identity, there is a need for a more comprehensive articulation of these rights in international law, '(i)t is precisely in this meeting between the normative work of States and the interpretive functions of international expert bodies that a common ground can begin to emerge'.13 1 Furthermore, commentators have suggested that international practice could also benefit from the application of more consistent terminology to address issues of sexual orientation and gender identity. 132 While some Special Procedures, treaty bodies and States have preferred speaking of 'sexual orientation' or 'gender identity', others speak of 'lesbians', 'gays', 'transgender' or 'transsexual' people, and still others speak of 'sexual preference' or use the language of 'sexual minorities'. In addition, issues of gender identity have been little understood, with some mechanisms and States referencing transsexuality as a 'sexual orientation', and others frankly acknowledging that they do not understand the term. 133 It is in this context of such diverse approaches, inconsistency, gaps and opportunities that the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity (the Yogyakarta Principles) 134 were conceived. The proposal to develop the Yogyakarta Principles originated, in 2005, with a coalition of human rights NGOs that was subsequently facilitated by the International Service for Human Rights and the International Commission of Jurists. It was proposed that the Principles have a tri-partite function. 135 In the first place they should 131 Presentation of the United Nations High Commissioner for Human Rights Ms Louise Arbour to the International Conference on Lesbian, Gay. Bisexual, and Transgender Rights, Montreal, 26 July 2006, available at: http://www.unhchr.ch/huricane/huricane.nsf/viewOl/ B91AE52651D33FODC12571BE002Fl72lopendocument [last accessed 15 February 2008], 132 ARC International, :4. Place at the Table: Global Advocacy on Sexual Orientation and Gender Identity - And the International Response', November 2006. 133 See ARC International. 'Out at the UN: Advancing Human Rights Based on Sexual Orientation and Gender Identity at the 61st Session of the UN Commission on Human Rights', March April 2005, available at: http://www.rightsaustralia.org.au/data/ARC%20CHR% 20Report%202005.pdf [last accessed 15 February 2008). 134 Available at: http://www.yogyakartaprinciples.org/principles..en.htm [last accessed 15 February 2008]. See also International Commission of Jurists, supra n. 2: International Commission of Jurists, 'Sexual Orientation and Gender Identity in Human Rights Law, References to Jurisprudence and Doctrine of the Inter-American System', July 2007, available at: http://www.icj.org/IMG/Inter-American.References.pdf [last accessed 15 February 2008); International Commission of Jurists. 'Sexual Orientation and Gender Identity in Human Rights Law, Jurisprudential, Legislative and Doctrinal References from the Council of Europe and the European Union', October 2007, available at: http://www.icj.org/IMG/ European.Compilation-web.pdf [last accessed 15 February 2008]. 135 Address of the Rapporteur at the launch event of the Principles, Geneva, March 2007.

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constitute a 'mapping' of the experiences of human rights violations experienced by people of diverse sexual orientations and gender identities. This exercise should be as inclusive and wide ranging as possible, taking account of the distinct ways in which human rights violations may be experienced in different regions of the world. Second, the application of international human rights law to such experiences should be articulated in as clear and precise a manner as possible. Finally, the Principles should spell out in some detail the nature of the obligation on States for effective implementation of each of the human rights obligations. Twenty-nine experts were invited to undertake the drafting of the Principles. They came from 25 countries representative of all geographic regions. They included one former UN High Commissioner for Human Rights (Mary Robinson, also a former head of state), 13 current or former UN human rights special mechanism office holders or treaty body members, two serving judges of domestic courts and a number of academics and activists. Seventeen of the experts were women.13 6 The first of the present authors was one 136 The experts who adopted the Yogyakarta Principles are: Philip Alston (Australia), UN Special Rapporteur on extrajudicial, summary and arbitrary executions and Professor of Law, School of Law, New York University, United States of America; Maxim Anmeghichean (Moldova), European Region of the International Lesbian and Gay Association; Mauro Cabral (Argentina), Universidad Nacional de Cordoba, International Gay and Lesbian Human Rights Commission: Edwin Cameron (South Africa), Justice, Supreme Court of Appeal. Bloemfontein, South Africa; Sonia Onufer Correa (Brazil), Research Associate at the Brazilian Interdisciplinary AIDS Association (ABIA) and Co-chair of the International Working Group on Sexuality and Social Policy (Co-chair of the experts' meeting); Yakin Ertiirk (Turkey), UN Special Rapporteur on violence against women, Professor, Department of Sociology, Middle East Technical University, Ankara, Turkey; Elizabeth Evatt (Australia), former Member and Chair of the UN Committee on the Elimination of Discrimination Against Women. former Member of the UN Human Rights Committee and Commissioner of the International Commission of Jurists; Paul Hunt (New Zealand), UN Special Rapporteur on the right to the highest attainable standard of health and Professor of Law, Department of Law, University of Essex, United Kingdom; Asma Jahangir (Pakistan), Chairperson, Human Rights Commission of Pakistan; Maina Kiai (Kenya), Chairperson, Kenya National Commission on Human Rights; Miloon Kothari (India), UN Special Rapporteur on the right to adequate housing; Judith Mesquita (United Kingdom), Senior Research Officer, Human Rights Centre, University of Essex, United Kingdom; Alice M. Miller (United States of America), Assistant Professor, School of Public Health, Co-director of the Human Rights Program, Columbia University; Sanji Mmasenono Monageng (Botswana), Judge of the High Court (The Republic of the Gambia), Commissioner of the African Commission on Human and Peoples' Rights, Chairperson of the Follow Up Committee on the implementation of the Robben Island Guidelines on prohibition and prevention of torture and other cruel, inhuman or degrading treatment (African Commission on Human and Peoples' Rights); Viti! Muntarbhorn (Thailand), UN Special Rapporteur on the human rights situation in the Democratic People's Republic of Korea and Professor of Law; Chulalongkorn University, Thailand (Co-chair of the experts' meeting); Lawrence Mute (Kenya), Commissioner of the Kenya National Commission on Human Rights; Manfred Nowak (Austria), Professor and Co-director of the Ludwig Boltzmann Institute of Human Rights, Austria, and UN Human Rights Council Special Rapporteur on Torture and other Cruel. Inhuman or Degrading Treatment; Ana Elena Obando Mendoza (Costa Rica), feminist attorney, women's human rights activist. and international consultant; Michael O'Flaherty (Ireland), Member of the UN Human Rights Committee, Professor of Applied Human Rights and Co-director of the Human Rights Law Centre, School of Law, University of Nottingham, and Rapporteur for the development of the

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of the experts. He also served as rapporteur of the process, responsible for proposing various formulations and capturing various expert views in a single agreed text. The drafting process took place over a period of some 12 months during 2006-07. While much of the drafting was done by means of electronic communications, many of the experts met at an international seminar that took place in Yogyakarta, Indonesia at Gadjah Mada University from 6 to 9 November 2006 to review and finalise the text. All of the text was agreed by consensus. Although initially some participants envisioned a very concise statement of legal principles, expressed in general terms, the seminar eventually reached the view that the complexity of circumstances of victims of human rights violations required a highly elaborated approach. They also considered that the text should be expressed in a manner that reflected the formulations in the international human rights treaties, whereby its authority as a statement of the legal standards would be reinforced. There are 29 principles. Each of these comprises a statement of international human rights law, its application to a given situation and an indication of the nature of the State's duty to implement the legal obligation. There is some order to the Principles. Principles 1 to 3 set out the principles of the universality of human rights and their application to all persons without discrimination, as well as the right of all people to recognition before the law. The experts placed these elements at the beginning of the text in order to recall the primordial significance of the universality of human rights and the scale and extent of discrimination targeted against people of diverse sexual orientations and gender identities, as well as the manner in which they are commonly rendered invisible within a society and its legal structures. Principles 4 to 11 address fundamental rights to life. freedom from violence and torture, privacy, access to justice and freedom from arbitrary detention. Principles 12 to 18 set out the importance of non-discrimination in the enjoyment of economic, social and cultural rights, including employment, Yogyakarta Principles; Sunil Pant (Nepal), President of the Blue Diamond Society, Nepal; Dimitrina Petrova (Bulgaria), Executive Director, The Equal Rights Trust: Rudi Muhammad Rizki (Indonesia), UN Special Rapporteur on international solidarity, and Senior Lecturer and the Vice Dean for Academic Affairs, F'dculty of Law, University of Padjadjaran, [ndonesia; Mary Robinson ([reland), Founder of Realizing Rights: The Ethical Globalization [nitiative, former President of [reland, and former United Nations High Commissioner for Human Rights; Nevena Vuckovic Sahovic (Serbia and Montenegro), Member of the UN Committee on the Rights of the Child, and President of the Child Rights Centre, Belgrade, Serbia Montenegro; Martin Scheinin (Finland), UN Special Rapporteur on counterterrorism, Professor of Constitutional and International Law, and Director of the [nstitute for Human Rights, Finland: Wan Yanhai (China), founder of the AIZHI Action Project and Director of Beijing AIZHlXING Institute of Health Education, China; Stephen Whittle (United Kingdom), Professor in Equalities Law, Manchester Metropolitan University, United Kingdom; Roman Wieruszewski (Poland), Member of the UN Human Rights Committee, and Head of Poznan Centre for Human Rights, Poland: and Robert Wintemute (United Kingdom), Professor of Human Rights Law, School of Law, King's College London, United Kingdom

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accommodation, social security, education and health. Principles 19 to 21 emphasise the importance of the freedom to express oneself, one's identity and one's sexuality, without State interference based on sexual orientation or gender identity, including the rights to participate peaceably in public assemblies and events and otherwise associate in community with others. Principles 22 and 23 highlight the rights of persons to seek asylum from persecution based on sexual orientation or gender identity. Principles 24 to 26 address the rights of persons to participate in family life, public affairs and the cultural life of their community, without discrimination based on sexual orientation or gender identity. Principle 27 recognises the right to defend and promote human rights without discrimination based on sexual orientation and gender identity, and the obligation of States to ensure the protection of human rights defenders working in these areas. Principles 28 and 29 affirm the importance of holding rights violators accountable, and ensuring appropriate redress for those who face rights violations. Most of the principles are titled in a manner that directly reflects the provisions of human rights treaties: right to education, highest attainable standard of health, etc. Those that differ are so phrased either to more specifically address a problematic situation (Principle 18, Protection from Medical Abuse), or to better reflect an accepted legal standard that does not derive from any one specific treaty provision (the principles on promotion of human rights-27, effective remedies-28 and accountability-29). The content of each Principle reflects the particular human rights challenges that the experts identified as well as the precise application of the law for that situation. As such, they vary widely in style and category of contents. However, a general typology for the legal obligations of States can be observed: (i) all necessary legislative, administrative and other measures to eradicate impugned practices; (ii) protection measures for those at risk; (iii) accountability of perpetrators and redress for victims; and, (iv) promotion of a human rights culture by means of education, training and public awareness-raising. It may thus be observed that the Principles take account of the manner in which UN human rights treaty bodies in their General Comments, as well as the theory of rights-based approaches, as discussed earlier, are informing contemporary understanding of the State's implementation obligation.137 As has already been noted, the experts sought to capture the existing state of international law. The present authors, based on a review of the consistency of the Principles with their understanding of the law (as presented in the present article), suggest that this goal was achieved. It may be argued, however, that in some cases, the Principles could have gone further in identifying the application of the law for certain situations. For instance, Principle 19, on the right to freedom of opinion and expression, where identifying the duty of 137 See supra n. 108.

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the State to regulate the media to avoid discrimination, only refers to media that is 'State-regulated'. While it is surely correct that such media should be prohibited from discriminatory practices and outputs it is not evident that the duty should not also be extended to non-state regulated media. In cases such as this we may observe the experts taking account of legal uncertainties regarding the reach of non-discrimination law into the private sphere, as discussed earlier. In a small number of other instances, the Principles are somewhat vague and non-prescriptive, perhaps again reflecting the uncertain state of law or its application. This may explain the provision at Principle 21(b) that 'expression, practice and promotion of different opinions, convictions and beliefs with regard to sexual orientation or gender identity is not undertaken in a manner incompatible with human rights'. Thus expressed it is unclear, for instance, whether a faith community could exclude someone from membership on grounds of sexual orientation, albeit the Principle, at a minimum, would require reflection as to the legitimacy in law of such an exclusion. Another criticism that may be directed to the Principles is that, notwithstanding a concerted effort to address specific fact circumstances, they are not comprehensive in this regard. For instance, it has been suggested that they could usefully have referred to issues of access to medicines in least-developed countries138 and to the phenomenon of domestic violence in same-sex households.139 Undoubtedly, as the Principles generate further commentary, additional omissions will be identified. The desire for consistency with the existing law resulted in the deliberate omission from the final text of a number of elements that had been considered during the drafting phase. For instance, there is no expression of a right to non-heterosexual marriage. Instead, Principle 24 on the right to found a family. at paragraph (e) only speaks of a right to non-discriminatory treatment of same-sex marriage in those States which already recognise it. It is noteworthy that the Principles are expressed in exclusively genderneutral terms. The approach was deliberately adopted in order to ensure the application of all aspects of the Principles with regard to the life experience of people regardless of and with full respect for whatever gender identity they may have, while also avoiding binary constructions of gender. This achievement came at the price of the invisibility in the text of any reference to the particular situation and issues of women. It may be considered that this omission detracts from the capacity of the document to forcefully address the problems confronting lesbians in numerous countries. The experts added a short 9-paragraph preamble to the Principles, but only after some debate, focussing on such matters as the avoidance of additional 138 Comment made to the present authors by an activist in Sub-Saharan Africa. 139 Comment made to the present authors by an activist who addresses issues of domestic violence.

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text that might detract from the Principles themselves. The preamble provides a context for the document, referring to the experiences of suffering and discrimination faced by people because of their actual or perceived sexual orientation or gender identity, the extent to which international human rights law already addresses these situations and the 'significant value in articulating [this law] in a systematic manner'. Notably, the preamble contains definitions of 'sexual orientation' and 'gender identity'. These formulations, drawing on those definitions widely in use within advocacy communities, establish a personal scope of application for the Principles. The preface also includes references that acknowledge the imperfections of the text and the need to keep its contents under review with a view to future reformulations that would take account of legal changes as well as developing understandings of the situation of people of diverse sexual orientations and gender identities. While the Principles are addressed to States, as the duty-bearers in international human rights law, the experts considered that they should also make recommendations to other actors with relevance for the promotion and protection of human rights of people of diverse sexual orientations and gender identities. There are 16 such recommendations directed to international intergovernmental and non-governmental bodies, international judicial and other human rights treaty bodies, national human rights institutions, commercial organisations, and others.

5. Assessment of Dissemination and Impact of the Principles The Yogyakarta Principles were launched on 26 March 2007, at a public event timed to coincide with the main session of the United Nations Human Rights Council in Geneva. Attended by Ambassadors, other State delegates, a former UN High Commissioner for Human Rights, UN Special Procedures, members of treaty bodies, participating experts and NGO representatives, the launch served as a focal point to move the Yogyakarta Principles onto the international agenda. Immediate discussion of the Principles at the Human Rights Council was encouraged by means of the convening of a Council side-event panel discussion. There have been numerous other launch-related events since, including a presentation of the Principles at an event in UN Headquarters in New York on 7 November 2007, co-hosted by the Governments of Brazil, Argentina and Uruguay, in conjunction with the Third Committee of the General Assembly, and attended by diplomatic representatives of some 20 States.140 The Principles are available 140 See International Service for Human Rights. Human Rights Watch and International Gay and Lesbian Human Rights Commission, 'Launching the Yogyakarta Principles in New York.

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on-line, 141 and have been published in the six official languages of the United Nations: English, French, Spanish, Russian, Chinese and Arabic. In addition to the official translations, NGOs have prepared translations of the Principles in Nepali, Indonesian, German and Portuguese, an annotated version of the Principles has recently been completed to identify the jurisprudential basis for each of the Principles, an international Youth Coalition is preparing a 'youthfriendly' version of the Principles, and work has begun on an Activists' Guide to strengthen the use of the Principles as a tool for advocacy. A preliminary assessment of the impact of the Yogyakarta Principles can be undertaken by means of an evaluation of the impact they have had since their launch. In this regard, it is of interest to identify the extent to which their addressees, primarily States, but also such actors as international organisations, Special Procedures, treaty bodies and civil society. have reacted. Given the ongoing process of dissemination and the extent to which many initiatives are not reported internationally, it is not possible for such a review to be exhaustive. Instead, the present authors closely examine reactions within the context of the various UN fora and take note of the more significant of the other reported reactions. A. Reaction by States and other Actors within United Nations Fora

This is not a propitious time at which to launch major human rights initiatives at the UN. That organisation is in a phase of reform and, in the context of the Human Rights Council, pre-occupied with institutional development, sometimes detracting from its ability to focus on substantive human rights. 142 Taking account of this, as well as of the relatively short period of time since the launch of the Principles and the generally slow pace of change within international mechanisms, one may conclude that the dissemination of the Principles has met with a surprising degree of success. A number of member and observer States have already cited them in Council proceedings. Within days of the Geneva launch, more than 30 States made positive interventions on sexual orientation and gender identity issues, with seven States specifically referring to the Yogyakarta Principles, 143 describing them as 'groundbreaking', Summary of the Panel Discussion on the Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity', New York, 7 November 2007, available at: http://www.sxpolitics.org/mambo4S2/ index.php?option=mn_content&task=view&id=l26 (last accessed 15 February 2008]. 141 Supra n. 134. 142 See Hicks and Gillioz. 'The Challenges Facing Non-Governmental Organisations' in Millier (ed.), The First 365 Days of the United Nations Human Rights Council (Bern: Federal Department of Foreign Affairs of Switzerland. 2007) 199 at 202. 143 The Czech Republic, Switzerland and the Nordic Countries Denmark, Finland, Iceland, Sweden and Norway, cited in ARC International, 'Recognising Human Rights Violations Based on Sexual Orientation and Gender Identity at the Human Rights Council, Session 4', April 2007; and ARC International. 'Report on Launch of Yogyakarta Principles', June 2007.

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as articulating 'legally-binding international standards that all States must respect' and commending them to the attention of the UN Human Rights Council, the High Commissioner for Human Rights, Special Procedures and treaty bodies. The Principles recommend that the Human Rights Council 'endorse' them and 'give substantive consideration to human rights violations based on sexual orientation or gender identity, with a view to promoting State compliance with these Principles'.144 Although endorsement by the Council as a body may be seen as ambitious, at least in the short term, it may be recalled that the Norwegian joint statement on sexual orientation, gender identity and human rights called for the President of the Council to allocate time at an appropriate future session of the Council 'for a discussion of sexual orientation and gender identity issues'.145 The 'substantive consideration' envisaged by the Principles may therefore be expected to take place during 200809, in which case the Principles themselves are likely to be referenced by many States in order to frame the debate. In addition to joint and separate interventions by States, there are a number of other mechanisms available to the Council through which the Principles may be engaged with, with some of these mechanisms subject of specific recommendations in the Principles themselves. The Principles recommend, for example, that the Special Procedures 'pay due attention to human rights violations based on sexual orientation or gender identity, and integrate these Principles into the implementation of their respective mandates'. The Principles were presented by NGOs to the system of Special Procedures at their 2007 annual meeting. The Czech Republic made favourable reference to the Principles during a Council dialogue with the Special Rapporteur on freedom of expression. 146 Egypt raised them in dialogue with the Special Rapporteur on the right to health,147 citing the definition of 'sexual orientation' and challenging the Special Rapporteur for signing the Principles 'in his capacity as UN Representative'. In his reply, the Special Rapporteur noted that his position on 'the illegality of discrimination on the grounds of sexual orientation' was consistent with that taken by the High Commissioner for Human Rights and a number of Special Procedures, eight of whom had endorsed the Yogyakarta Principles in their official capacity. Highlighting the role that the Principles may come to play in standard-setting, the Special Rapporteur further pointed out to Egypt during an informal briefing that 10 years ago 144 Yogyakarta Principles, supra n.134 at Additional Recommendation B. 145 Norwegian joint statement. supra n. 126. 146 Statement of the Czech Republic, Interactive Dialogue on the report of the Special Rapporteur on right to freedom of opinion and expression. Human Rights Council. 4th session, Geneva, 12-30 March 2007. 147 Statement of Egypt on the Review, rationalisation and improvement the mandate of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Human Rights Council, 6th session (resumed), Geneva, 10-14 December 2007.

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female genital mutilation was considered by many States to be a matter of 'cultural sensitivity', but is now widely regarded as incompatible with the right to health, and that in future there may well be similar changes with regard to perceptions of homosexuality. In challenging the Special Rapporteur, it is noteworthy that Egypt took no exception to the content of the Principles themselves, or to their endorsement by a number of Special Procedures, only to the fact that the Special Rapporteur had signed them in an official capacity. It further noted that 'we understand that these values are acceptable in many societies, and we have no objection to this. What we have objection to is the persistent attempts to streamline those values at the UN while they are objectionable by the majority of the countries'. 148 Interesting possibilities for engagement around the Principles are offered by the Universal Periodic Review, a new mechanism of the Council designed to address criticisms of politicisation and selectivity levelled at the former Commission on Human Rights, 149 by ensuring that the human rights records of all 192 United Nations Member States will be reviewed on a periodic fouryear cycle. 150 The review is intended to be a co-operative mechanism, to assist States in fulfilling their international commitments and improving their human rights situation. During the first cycle of review, NGOs addressing sexual orientation, gender identity and broader sexual rights issues have made submissions on 13 of the 16 countries under review. 151 Many of these submissions explicitly referenced the Yogyakarta Principles, both to articulate the nature and scope of State obligations under international human rights law, and to identify detailed recommendations for measures that States can take to fulfil these obligations at the national level. The Universal Periodic Review is described as a process, providing multiple opportunities for engagement.152 Future evaluation of the impact of the Principles may therefore additionally take into account the extent to which they are referenced in the Office of the High Commissioner for Human Rights (OHCHR) compilations of 148 Ibid. 149 See Ambassador de Alba, 'Reviewing the Process: Challenges in the Creation of the Human Rights Council', in Miiller, supra n. 142, 48 at 49; and Tistounet, 'Facts and Figures: Human Rights Council in Brief'. in Miiller, supra n. 142, 57. 150 See HRC Res. 5/1, 'Institution-building of the United Nations Human Rights Council', Human Rights Council, 5th session, A/HRC/RES/5/1, Geneva, 18 June 2007; Follow-up to Human Rights Council Resolution 5/1: General Guidelines for the preparation of information under the Universal Periodic Review, Human Rights Council, 6th session, A/HRC/DEC/6/102, 27 September 2007. 151 Bahrain, Ecuador, Tunisia, Morocco, Indonesia, Finland, India. Brazil Algeria, Poland, South Africa, the Czech Republic and Argentina: ARC International, 'Summary of NGO Submissions addressing Sexual Orientation and Gender Identity in First Cycle of UPR', 2008. A complete copy of the submissions is on file with the second author of the present article. 152 OHCHR, 'Information Note for NGOs Regarding the Universal Periodic Review Mechanism', Geneva, 8 January 2008, available at: http://www2.ohchr.org/english/bodies/hrcouncil/upr/ noteNG0.041007.htm [last accessed 15 February 2008]; and OHCHR summaries, available at: http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx [last accessed 15 February 2008].

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relevant materials, during national consultations by the State under review, in the State report itself, during the Interactive Dialogue conducted in a Working Group between Human Rights Council members and the State under review, in the outcome report and recommendations arising from the Working Group dialogue, during adoption of the report by the Human Rights Council, and in follow-up activities to implement the ensuing recommendations at the national level. 153 The Principles recommend that the UN High Commissioner for Human Rights endorse them, 'promote their implementation worldwide' and integrate them into the work of OHCHR, 'including at the field level'. 154 In a written statement to the New York launch event, the High Commissioner described the 60th anniversary of the UDHR as an 'ideal opportunity to recall the core human rights principles of equality, universality and non-discrimination'. Describing it as 'unthinkable' to exclude persons from these protections because of their race, religion or social status, she asserted that we must similarly 'reject any attempt to do so on the basis of sexual orientation or gender identity', and described the Yogyakarta Principles as a 'timely reminder' of these basic tenets. 155 While falling short of the recommendation that she 'endorse' the Principles, her statement does affirm their value and it may be observed that she chose their launch event at which to express the 'firm commitment' of her Office to promote and protect the human rights of all persons, regardless of sexual orientation or gender identity. Whatever restraint may be observed in the High Commissioner's personal statements, at the field level her Office may have some flexibility in integrating the Principles into their work. At annual meetings between the heads of the OHCHR field offices and Geneva-based NGOs, the Yogyakarta Principles were introduced. The field office heads, acknowledging that attention to these concerns has often been sporadic and inconsistent, welcomed the Principles as a useful tool for bringing greater coherence to their efforts. 156 Such previous efforts had included interventions on behalf of victims of sexual orientation and gender identity-related attacks in Nepal and NGOs under threat in Uganda. 157 The first specific citation of the Principles by a field office was in Nepal, in August 2007, where a senior officer delivered a statement at a ceremony 'to inaugurate the Yogyakarta Principles translated into Nepali'. 158 153 See HRC Res. 5/1, supra n. 150; OHCHR, ibid.; and ARC International, '.A Guide to the UPR for Sexual Orientation and Gender Identity Advocates', December 2007. 154 Yogyakarta Principles, supra n. 134 at Additional Recommendation A. 155 Statement of Louise Arbour, UN High Commissioner for Human Rights, Launch of the Yogyakarta Principles, New York, 7 November 2007. 156 ARC International, 'Report of Annual Meeting with OHCHR Field Presences', 7 November 2007. 157 Ibid. 158 Statement by Johan Olhagen, Head of Katmandu Field Office, Office of the High Commissioner for Human Rights in Nepal, delivered at a 'Ceremony to Inaugurate the Yogyakarta Principles translated into Nepali', Blue Diamond Society, Katmandu, 11 August 2007.

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He described the Principles as an 'important document to focus international attention on the need for a more systematic approach to protection'. He went on to situate the Principles within the context of the Nepali peace process and Interim Constitution, acknowledging that the voices of metis are amongst the most marginalised in society, and concluded that 'the Yogyakarta Principles provide an essential tool for creating awareness, for debate, advocacy and action to develop a proper protective legal framework, and to end abuses against individuals on account of their sexual orientation and gender identity in Nepal'. Similar sentiments were expressed by another senior official in South Africa in December 2007.159 While such developments are of interest. it must be observed that they occurred in response to civil society invitations rather than on the basis of any policy-level positioning on the part of OHCHR. Other UN mechanisms to which the Yogyakarta Principles address recommendations include the treaty bodies, the UN ECOSOC and UN agencies. Initial awareness-raising work has begun, with the distribution of the Principles to all treaty-body members, a presentation of the Principles to the annual meeting of Chairpersons of Treaty Bodies, and a briefing to members of the UN HRC.160 While this preliminary engagement may assist in advancing the recommendation in the Principles that the treaty bodies integrate the Principles into the implementation of their mandates, including their case law and examination of State reports,161 the recommendation that they adopt relevant 'General Comments or other interpretive texts' 162 is likely to be a significantly longer-term objective. Recommendation D of the Principles calls upon the UN ECOSOC to accredit NGOs working to promote and protect the human rights of persons of diverse sexual orientations and gender identities. Despite initial rejections, a number of such NGOs have now received ECOSOC accreditation, and the Yogyakarta Principles were cited in advocacy materials when the matter arose for consideration,163 although it is difficult to measure the extent to which the Principles themselves may have influenced the outcome. The ECOSOC NGO Committee receives accreditation applications from an increasingly diverse range of NGOs. and the issue is likely to remain a lively one for many years. Regarding Recommendations F and G, there has been modest engagement

159 International Dialogue on Gender. Sexuality. and HIV/AIDS. 'Strengthening Human Rights Responses in Africa and Around the Globe', Johannesburg, 6-10 December 2007. 160 Joint briefing for members of the Human Rights Committee. International Service for Human Rights and ARC International. Geneva, 23 October 2007. 161 Yogyakarta Principles. supra n. 134 at Additional Recommendations E. 162 Ibid. 163 ARC International. Fact Sheet: ECOSOC Accreditation of NGOs addressing Issues of Sexual Orientation & Gender Identity: The Importance of Non-Discriminatory Access and Participation. July 2007.

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around the Principles with UN agencies. Copies of the Principles have sent to the Office of the UN High Commissioner for Refugees, which is considering developing clearer guidelines on refugee issues relating to sexual orientation and gender identity. Also, a senior UNAIDS official addressed the New York launch event,164 observing that the criminalisation of homosexual activities is not an effective method of addressing HIV/AIDS, referencing the non-binding UN International Guidelines on HIV/AIDS, 165 and expressing the support of UNAIDS for the Principles. In addition, the UN Office on Drugs and Crime, in developing a draft Handbook on 'Prisoners with Special Needs', including sexual minorities, drew extensively on the Yogyakarta Principles, including Principle 9 dealing with the Right to Treatment with Humanity while in Detention. 166 B. Other Responses by States to the Principles

A number of States have expressed a willingness to draw upon the Principles as a guide to policy-making. The Dutch Minister of Foreign Affairs has developed a new human rights strategy to be debated in Parliament, which affirms that 'the Yogyakarta Principles are seen by the government as a guideline for its policy',167 and outlines a number of specific initiatives, including capacitybuilding for international and local NGOs working on these issues. The Canadian government has described the Principles as 'useful blueprints' to measure progress on human rights related to sexual orientation and gender identity around the world, 168 and the Uruguayan government referred to the Principles as an 'important document to assist (it)' in overcoming discrimination based on sexual orientation and gender identity. 169 The Brazilian government intends to publish the Principles in a Portuguese translation and to feature them at an event in 2008 to promote its 'Brazil without homophobia' programme. 170 The Argentinean government has stated that many of the issues addressed by the Yogyakarta Principles are also the focus of a National Action Plan for non-discrimination adopted by the government in 2004.171 Some States are citing the Principles in bilateral relations. Part of the Dutch 164 See International Service for Human Rights, Human Rights Watch and International Gay and Lesbian Human Rights Commission, supra n. 140. 165 CHR Res. 1997/33, The protection of human rights in the context of human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS), 11 April 1997, E/CN.4/1997/33. 166 UN Office on Drugs and Crime (Criminal Justice Reform Unit), Prisoners with Special Needs (draft), 2007. 167 Dutch Ministry of Foreign Affairs,~ life of human dignity for all, A human rights strategy for foreign policy', 6 November 2007, at para. 2.7 (pp. 47 and 48) (unauthorised translation). 168 Government of Canada, Response to Petition, Petition No. 391-1634, 6 June 2007. 169 International Service for Human Rights, Human Rights Watch and International Gay and Lesbian Human Rights Commission, supra n.140. 170 Ibid. 171 Ibid.

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strategy involves raising the issue of decriminalisation of homosexual conduct with relevant States. At the regional level, the European Parliament's Intergroup on Gay and Lesbian Rights has endorsed the Principles and a recently appointed Advisor to the Council of Europe's Human Rights Commissioner has indicated that the Yogyakarta Principles will serve as an important tool in advancing one of the Office's core priorities, namely country and thematic monitoring related to discrimination and human rights violations based on sexual orientation and gender identity. 172 Within Latin America, where issues of sexual orientation and gender identity have increasingly been discussed as part of the agenda at Mercosur meetings, 173 the support for the Principles expressed by founding members Brazil, Argentina and Uruguay may be expected to result in increased support from other full and associate members. Interestingly, while many States have yet to embrace the responsibilities set out in the Yogyakarta Principles, there are early indications that municipal authorities and national human rights institutions may be more ready to engage. For instance, in South Africa, where government representatives declined to attend a conference on Gender, Sexuality, HIV/AIDS and Human Rights, the Speaker of the Johannesburg Municipal Council chose that event to express criticism of a 'collective amnesia' in public life concerning the constitutional prohibition of discrimination on the ground of sexual orientation and to commend the Yogyakarta Principles. He called on conference participants to ensure that 'both the Constitution and the Yogyakarta Principles become accepted by all members of our increasingly diverse communities in Johannesburg and internationally'. 174 C. Civil Society Responses

Notwithstanding Recommendation J, the non (or at least limited)-participatory approach inherent in an expert-led process of drafting the Principles raised a risk that the process or text might be rejected as elitist by the very communities whose situation it was intended to address and the support of whom is of crucial significance. 175 Notwithstanding such concerns, 172 Dittrich, 'Yogyakarta Principles in New Dutch Human Rights Strategy', 21 November 2007 (unofficial translation); and e-mail communications with Advisor. Office of the Commissioner for Human Rights Council of Europe, January 2008, on file with authors. 173 At the 9th High Level MERCOSUR meeting that was held in Montevideo in August 2007. the first regional seminar on sexual diversity, identity and gender was held with the participation of government representatives and representatives of civil society from the whole region. 174 Speaker of Council, Councillor Nkele Ntingane, City of Johannesburg Metropolitan Municipal Councill, Opening Ceremony for International Dialogue on Gender. Sexuality and HIV/AIDS, Johannesburg, 6 December 2007. 175 [n this regard. the Yogyakarta process may be distinguished from the highly participatory manner in which other more aspirational texts have been developed. For instance, there was wide community participation in the drafting of the Declaration of Montreal on Lesbian,

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preliminary indications of civil society response are encouraging. The Principles have been presented and discussed at regional conferences in Africa, 176 Latin America, 177 Eastern Europe 178 and Asia, 179 and requests for copies for distribution have been received from NGOs in a diverse range of countries around the world. 180 The Principles were referenced by civil society in statements addressed to the 2007 Africa-European Union summit. 181 NGOs are also drawing upon the Principles in negotiations with governments. In Northern Ireland, for example, civil society representatives have introduced the Principles for debate at the Bill of Rights Forum of Northern Ireland, constituted to advise on elements for a Bill of Rights. 182 In Kyrgyzstan, a group is using the Principles in meetings with the government to establish procedures for recognising the right of transgender people to official documentation that reflects their gender identity,183 and activists in Nicaragua invoked the Principles in meetings with the government to advocate successfully for the decriminalisation of homosexuality. 184 In one particularly well publicised instance, a campaigning group in South Africa launched an anti-hate crimes campaign in response to the murders of lesbian women in Soweto185 citing Principle 5 of the Principles, on the right to security of the person, and calling upon the government to implement the associated recommendations.

176 177 178 179 180

181 182

183 184 185

Gay, Bisexual and Transgender Human Rights. adopted on 29 July 2006 by the International Conference on LGBT Human Rights as part of the first World Outgames. See http://www.declarationofmontreal.org/ [last accessed 15 February 2008]. ILGA Conference, Johannesburg, May 2007; International Dialogue on Gender, Sexuality, HIV/ AIDS and Human Rights, ARC International and Coalition of African Lesbians, Johannesburg, December 2007. International Association for the Study of the Sexuality; Culture and Society (IASSCS) Conference, Peru, June 2007; 4 encuentro de ILGA en America Latina y el Caribe, Peru, September 2007. ILGA Europe Conference, Lithuania, 25-28 October 2007. ILGA Asia-Regional Conference, Thailand, 24-27 January 2008. Requests for copies and supportive comments have been received from NGOs in countries including Andorra, Argentina, Australia, Belarus, Belize, Brazil, Cameroon, Canada, Chile, China, Denmark, Ecuador, France, Germany, Guyana, Hong Kong, India, Indonesia, Ireland, Japan, Kenya, Kyrgyzstan. Latvia, Lithuania, Mexico, Nicaragua, Nigeria, Peru, the Philippines, Romania, Russia, Senegal. South Korea, Thailand, Tonga, Uganda, United Kingdom, Uruguay, the United States of America and Zimbabwe. ILGA, ILGA-Europe, Pan-Africa ILGA, :Mrican and European LGBT Organisations Call on all States to Fight Homophobia and to Adopt the Yogyakarta Principles', joint media release, Portugal, 7 December 2007. Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland, 10 April. 1998, Strand Three (Rights, Safeguards and Equality of Opportunity) at para. 4, available at: http://www.niassembly.gov.uk/io/agreement. htm [last accessed 15 February 2008]. E-mail communications on file with authors. cited in ARC International, supra n. 143. E-mail communications on file with authors, cited in supra n.143. The Alliance for Campaign 07 - 07 - 07, 'Call to Action', Johannesburg, 10 December 2007, at para. 1.3, available at: http://www.out.org.za/articles.asp?artid=43 [last accessed 15 February 2008].

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Other instances of use of the Principles include NGO actions in South Korea, Belize and the UK.186 The first known citation in domestic law of the Principles is contained in a brief submitted to the Nepal Supreme Court by the International Commission of Jurists. The brief invokes the Principles' definition of 'gender identity'.187 The Principles are being used as teaching tools in university-level and other courses in China, Argentina, UK, USA, Brazil and the Philippines. Civil society has also engaged the media. For instance, a Kenyan group is reportedly using the Principles 'to involve the media in our mission through sexual health and rights policy visibility'. 188 Although it is difficult to speculate as to the reasons for such vigorous civil society activism, informal discussions of the present authors with NGO leaders, suggest a variety of factors. 189 One such is the extent to which the expert drafters of the Principles were representative of so wide a range of competencies and skills relevant both to international law and issues of sexual orientation and gender identity. This representation ensured a balance of expertise contributing to a text that, to be effective, needed to be both jurisprudential and reflective of the 'lives and experiences of persons of diverse sexual orientations and gender identities'.190 The Preamble to the Principles, for example, explicitly recognises the 'violence, harassment. discrimination, exclusion, stigmatisation and prejudice' directed against persons because of their sexual orientation or gender identity, as well as the resulting concealment of identity, fear and invisibility,191 factors which resonate with the communities affected. As one online commentator noted at the time of the launch of the Principles, 'I am now, under International Human Rights Law, officially human. And yesterday, I wasn't'.192 It has also been suggested to the present authors that the use of

186 Immigration Law Practitioners' Association (ILPA) and the UK Lesbian and Gay Immigration Group (UKLGIG), 'Sexual and Gender Identity Guidelines for the Determination of Asylum Claims in the UK', July 2007 at para. 3.2.3. 187 International Commission of Jurists, 'Submissions to the Supreme Court of The State of Nepal, Providing the Basis in International Human Rights Law for the Prohibition of Discrimination Based on Sexual Orientation and Gender Identity, and Other Connected Matters', 2007, available at http://www.tcj.org/IMG/nepalsupremecrt.pdf [last accessed 15 February 2008]. The Court ruled on 21 December 2007, that all persons are entitled to the equal protection and benefit of the law, irrespective of their sexual orientation or gender identity (although the Yogyakarta Principles were not specifically referenced in the judicial decision). 188 As cited in: O'Flaherty, 'New Principles on Sexual Orientation, Gender Equality and Human Rights', Rights News, Irish Council for Civil Liberties, Summer 2007, at 4. 189 The speculative elements in this paragraph are supported by notes of such discussions on file with the present authors. 190 Yogyakarta Principles, supra n. 134 at Preamble. paras 8 and 9, 191 Ibid. at Preamble at para. 2. 192 'Victory in Yogyakarta', 26 March 2007. available at: http://aebrain.blogspot.com/ 2007.0325.archive.html [last accessed 15 February 2008].

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the widely encompassing grounds of 'sexual orientation' and 'gender identity', rather than attempting to define an exhaustive catalogue of specific identities avoids some of the hazards of identity politics, and ensures a more inclusive approach. There have been favourable comments regarding the manner in which the Principles place gender identity on an equal footing with sexual orientation rather than treating it as an addendum issue. Finally, commentators have referred to the utility for advocacy purposes of the combination of statements of principle with detailed recommendations for State action. Not all the responses to the Principles have been positive: a faith-based group, the Catholic Family and Human Rights Institute, corresponded with all Permanent Missions to the UN in New York regarding the 'dangerous document' and provided them with briefing materials entitled 'Six Problems with the Yogyakarta Principles', which express concerns that the Principles 'undermine parental and familial authority', 'undermine freedom of speech', 'undermine religious freedom', 'undermine national sovereignty/national democratic institutions', 'encourage (physically, psychologically and morally) unhealthy choices' and 'fail to provide objective standards for evaluating sexual behaviour'.193 A group called 'The State of America' has also condemned the Principles as 'an affront to all human and especially natural rights' and a 'farce of justice'.194 Even these critiques, however, reflect the extent to which the Principles have attracted international attention, and are perceived by opponents and supporters alike as a significant step forward in the recognition of human rights for people of diverse sexual orientations and gender identities.

6. Conclusion The Yogyakarta Principles appear to pass the crucial tests of being relevant to the actual situation of affected communities and being a faithful and coherent reflection of the existing international legal standards. It is not then surprising to consider the impact the Principles have already had, albeit dissemination is only beginning and will require the sustained attention from a global collaboration of lawyers, academics and activists. Equally, and as the Principles themselves attest, they are an imperfect work-set in a moment of time and reliant on the limited available information and understanding. As such, the

193 Catholic Family and Human Rights Institute, 'Six Problems with the Yogyakarta Principles', 13 April 2007. 194 Downs, State of America, e-mail communication on file with second author of the present article, 9 November 2007.

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Principles should be understood as a work-in-progress that must countenance an ongoing and frank consideration of how they might be improved and adjusted. In this way. the Yogyakarta Principles are most likely to contribute to the realisation of their own promise of 'a different future where all people born free and equal in dignity and rights can fulfil that precious birthright'. 195

195 Supra n. 134 at /\bout the Principles'.

Part III Interpreting and Applying the Law

[11] PROHIBITED DISCRIMINATION IN INTERNATIONAL HUMAN RIGHTS LAW

Dinah Shelton*

Humanity is as diverse as the number of persons who have ever lived: each individual is unique in attributes and potential, goals and abilities. Human rights law recognizes and celebrates this diversity by aiming to ensure the conditions necessary for each person to exercise individual self-determination in realizing her or his goals and potential as fully as possible consistent with other persons' self-fulfillment. To do this, the law emphasizes not the diversity, but the shared attributes and inherent nature of human beings. Thus, everyone is entitled to the same freedoms to speak, learn, think, vote, express opinions, hold office, marry and have children, and choose a religion. The physical and mental integrity of each person is guaranteed along with equal access to public services, medical care, justice, education and employment. Equality and nondiscrimination are implied in the fact that human rights instruments guarantee rights to "all persons", "everyone", or "every human being". In fact, the right to be free from discrimination and to enjoy equality in the exercise of rights has been called "the most fundamental of the rights of man ... the starting point of all other liberties". 1 Although human rights texts expressly recognize the rights of "all persons", in practice probably few if any of the rights mentioned are absolutely guaranteed in full equality to all humans at all times. The • An earlier version of this essay was published in Spanish as Dinah Shelton 'Prohibicion de discriminacion en el Derecho Internacional de los Derechos Humanos', Anuario de Derechos Humanos N° 4, Centro de Derechos Humanos, Facultad de Derecho Universidad de Chile, (2008). 1 Sir Hersch Lauterpacht, An International Bill of the Rights of Man (Columbia University Press, New York, 1945), p. 115. On equality and non-discrimination in international law, see Anne Bayefsky, The Principle of Equality or Non-Discrimination in International Law (1990) 1:1-2 Human Rights Law Journal pp. 1-34; Marc Bossuyt, L' interdiction de la discrimination en droit international des droits de l'homme (Bruylant, Bruxelles, 1976); Lauri Hannikainen and Eeva Nykiinen (eds.), New Trends in. Discrimination Law - International Perspectives (Turku University, Turku, 1999); Warwick A. McKean, 'The Meaning of Discrimination in International and Municipal Law' (1970) 44 British Yearbook of International Law pp. 177-192; Warwick A. Mc Kean, Equality and Discrimination under International Law (Clarendon Press, Oxford, 1983); Bertrand G. Ramcharan, Equality and Nondiscrimination in L. Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights (Columbia University Press, New York, 1981), pp. 246-270; Egbert. W. Vierdag, The Concept of Discrimination in International Law (Martinus Nijhoff, The Hague, 1973).

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rights to marry and to vote, for example, are limited by age; access to justice is restricted by procedural rules, including statutes of limitations and filing fees that may effectively bar some persons; political rights are often guaranteed only to citizens. Laws draw distinctions. Even when a law is neutral on its face it may disparately impact particular groups or individuals, leading those affected to claim that the measure is discriminatory. Structural factors can lead certain groups to fall behind the rest of society, regardless of formally equal treatment or a prohibition of direct discrimination. As a result, consistency of treatment may fail to ensure the broader aims of equality, if applied on its own without taking into account differences as well as similarities within the population. In principle, non-discrimination as a part of distributive justice involves treating equally those who are in an equal position and treating unequally those who are in unequal positions insofar as relevant criteria are concerned. The difficulty lies in determining what differences are relevant in comparing the equality or inequality of individuals and groups. The problem is two-fold: determining what attributes have relevance and deciding what reasons are sufficient to make distinctions based upon those attributes. Although international human rights instruments have core equality provisions in common, variation in language of the different texts, the interpretations given their provisions, and the nature of the cases considered, lead to a spectrum of different results. This essay attempts to assess how the prohibition of discrimination is understood in contemporary international human rights law. It aims to determine whether there are coherent theories applied consistently by human rights bodies in deciding which distinctions are permitted and which are invidious. The essay begins by surveying the provisions of human rights instruments that call for non-discrimination and equality.2 Next, the essay examines the jurisprudence of international tribunals and monitoring bodies, including judgments, advisory opinions, general comments, and observations on state periodic reports. The conclusion attempts to draw from this body of law a general approach to discrimination in international human rights law. It may be noted at the outset that in the early twentieth century, concern with equality and non-discrimination arose primarily in the law of state responsibility for injury to aliens 3 and in the protection afforded 2 The chapter will not discuss the Convention on the Elimination of All Forms of Racial Discrimination or the work of its Committee. 3 Discrimination between nationals and aliens was generally held to violate international law, arising most frequently in cases of expropriation of property. See e.g.,

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certain national minorities. After World War I, the protection of minority groups was included among the stipulations required of new states and those defeated in the war. Minority clauses guaranteed nondiscrimination, but also sought to preserve the identity and culture of the minority groups, whose demands for equality and recognition were seen as among the causes of past conflicts. The treaties thus required not only equal rights, but specific measures for the preservation of the protected groups, which lacked political power to ensure this preservation themselves. 4 The required protective measures differed from modem affirmative action, however, because they were not temporary means to achieve equality, but rather permanent rights for minority groups, treating differently the unlike situations of majority and minority groups as their different situations demanded. The groups were thus ensured language rights, separate educational and religious institutions, an equitable share of public funds, and respect for religious holidays. 5 Equality in law precluded discrimination of any kind, while equality in fact necessitated different treatment in order to attain "equilibrium" between those in different situations. 6 I. EQUALITY AND NON-DISCRIMINATION IN THE UN CHARTER AND CHARTER BODIES

A delegate to the UN General Assembly's Third Committee once claimed that "the United Nations Organization had been founded John H. Herz, Expropriation of Foreign Property (1941) 35:2 American Journal of International Law p. 243-262; Samy Friedman, Expropriation in International Law (Stevens & Sons, London, 1958), pp. 189, 193; Gillian White, Nationalisation of Foreign Property (Praeger, New York, 1961), chapter 6. See more generally, Shigeru Oda, The Individual in International Law in M Sorensen (ed.), Manual of Public International Law (Macmillan, London, 1968), p. 486. 4 For a discussion of the drafting history of the League of Nations Covenant and the unsuccessful efforts to include provisions on racial and religious equality, see McKean, supra note l, pp. 14-26. 5 In its first advisory opinion, the Permanent Court declared that under the minorities treaties there must be "equality in fact as well as ostensible equality in the sense of absence of discrimination in the words of the law". Settlers of German Origin in Poland, 10 September 1923, Permanent Court oflntemational Justice, Ser. B, No. 6, p. 24. 6 Minority Schools in Albania, 6 April 1935, Permanent Court oflntemational Justice, Ser. A/B, No. 64, p. 19 turned on a law that was neutral on its face (abolition of all private schools), but one which had a disparate and discriminatory (in the eyes of the court) impact on the Greek minority population in Albania. See also Advisory Opinion on

Treatment of Polish Nationals and Persons of Polish Origin or Speech in the Territory of the Free City of Danzig, 4 February 1932, Permanent Court of International Justice, Ser. A/B, No. 44.

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principally to combat discrimination in the world". 7 Commentators agree that equality and non-discrimination "are central to the human rights movement". 8 Indeed, the stated objectives of the United Nations, which set the stage for the organization's human rights work, indicate the drafters' concern for equality and non-discrimination: The Purposes of the United Nations are (UN Charter, Art. 1): 1. To maintain international peace and security ... 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination ofpeoples ... 3. To achieve international cooperation in ... promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion ... (emphasis added).

The Charter's numerous references to human rights only expressly mention two rights: self-determination and non-discrimination. With one exception in Article 62, each time the phrase "human rights and fundamental freedoms" appears in the Charter, the phrase is followed by the words "without discrimination on the basis of race, sex, language or religion." While the list of prohibited grounds for discrimination has considerably expanded in subsequent texts and jurisprudence, the combined focus on equality and self-determination has directed much of the work of the United Nations bodies on human rights issues. The UN emphasized its commitment to combating discrimination in the mandates member states conferred on its new organs. The former Commission on Human Rights was directed to address the protection of minorities and the prevention of discrimination on grounds of race, sex, language, or religion. 9 The Economic and Social Council empowered the Commission to create a sub-commission on this topic, the Sub-Commission on Prevention of Discrimination and Protection of Minorities. 10 The Economic and Social Council also UN Doc. A/C.3/SR.100, p. 7, quoted in McKean, supra note 1, p. 177. Jerome Shestack, 'The Jurisprudence of Human Rights' in Th. Meron (ed.), Human Rights in International Law: Legal and Policy Issues, Vol. 2 (Clarendon, Oxford, 1984), p. 101. John Humphrey says that discrimination, like human rights, runs through the UN Charter like "a golden thread"; John P. Humphrey, 'Preventing Discrimination and Positive Protection for Minorities: Aspects of International Law' ( 1986) 27 Les Cahiers de Droitpp. 23, 27. 9 Report by the Executive Committee to the Preparatory Commission of the United Nations (UN Doc. PC/EX/113/rev. l ), 12 November 1945, pp. 52-53. 10 In its early years, the Sub-Commission undertook to study discrimination in 7 8

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created the Commission on the Status of Women to promote equality between men and women, without regard to nationality, race, language or religion and to eliminate all discrimination against women in law and practice. From the beginning, UN member states invoked the Charter references to equal rights to speak out against systematic discrimination. During the first session of the General Assembly in 1946, India criticized segregation in the United States; the U.S. responded by deriding the caste system in India. 11 Egypt, supported by Latin American states, introduced a resolution, unanimously adopted, to condemn racial and religious persecution. 12 An Indian-sponsored resolution to condemn South Africa for its policies of racial discrimination passed with the required twothirds majority, despite opposition from Australia, Britain, Canada and the United States, each of which had its own racial policies that contravened the Charter guarantees. 13 The first session of the General Assembly also produced action on genocide, declaring it to be a crime under international law. 14 Similar condemnations of discrimination followed in subsequent sessions of the General Assembly. In fact, during the first 30 years of human rights discussions in the General Assembly and ECOSOC, 15 education, occupation and employment, political rights, religious rights, residence, and freedom of movement. See Charles D. Ammoun, Study of Discrimination in Education (E/CN.4/Sub.2/181/rev. l ), 1956; Arcot Krishnaswami, Study of Discrimination in Respect of Religious Rights (E/CN.4/Sub.2/200/rev.1) 1959; Heman Santa Cruz, Study of Discrimination in Respect of Political Rights (E/CN.4/Sub.2/213/rev.1), 1961 and (E/CN.4/Sub.2/370), 1976; Jose. D. Ingles, Study ofDiscrimination in Respect of the Right of Everyone to Leave any Country, Including his Own, and to Return to his Own County (E/CN.4/Sub.2/220), 1960; Vieno V. Saario, Study of Discrimination against Persons Born out of Wedlock (E/CN.4/Sub.2/265), 1966; Heman Santa Cruz, Study of Racial Discrimination in the Political, Economic, Social and Cultural Spheres (E/CN.4/Sub.2/288), 1968; Jose Martinez Cobo, Study of Discrimination against Indigenous Peoples (E/CN.4/Sub.2/415), 4 July 1978. In 1952 the ILO began work on discrimination in employment and occupation, leading to a convention on the topic. In addition, the Sub-Commission study of discrimination in education, undertaken in cooperation with UNESCO led to conclusion of the UNESCO Convention on Discrimination in Education. 11 (1946--47) 1 Yearbook of the United Nations (United Nations, New York, 1947), p. 207. 12 Res. 103(1), 48 th plenary meeting, 29 November 1946 (UN Doc. A/64/add.l), 11 December 1946, p. 200. The resolution called for an end to religious and racial persecution and discrimination and for states to conform to the letter and spirit of the UN Charter. 13 Resolution 44(I), I (pt. 2), ibid., p. 69. The issue of South Africa's racial policies remained on the agenda of the United Nations in every session until the end of apartheid. 14 GA Res. 96(1), concerning the crime of genocide. 15 Jack Donnelly, 'Human Rights at the United Nations, 1955-1985: The Question of

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racial discrimination was the topic most often on the agenda, taking up almost as much time as all civil and political rights combined. In 1962, the General Assembly established the Special Committee on the policies of apartheid of the Government of South Africa. Several years later, in Resolution 2145 (XXI) of 27 October 1966, the General Assembly terminated South Africa's mandate over South West Africa (now Namibia). In a 1971 advisory opinion, the ICJ agreed that South Africa's denial of human rights and fundamental freedoms on the basis of race constituted "a flagrant violation of the purposes and principles of the Charter". The court thus emphasized the importance of nondiscrimination in the language of the Charter and the practice of the UN organs. II. GLOBAL AND REGIONAL HUMAN RIGHTS TREATIES

The Universal Declaration of Human Rights (UDHR) begins its Preamble by reaffirming human solidarity, recognizing the inherent dignity and "equal and inalienable rights of all members of the human family". In Article 1 it proclaims that "[a]ll human beings are born free and equal in dignity and rights". Article 2 adds that everyone is entitled to all the rights in the UDHR "without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." The use of the words "such as" and inclusion of "other status" make clear that this list is not exhaustive. Article 7 provides for equality before the law and equal protection of law, as well as equal protection against discrimination and incitement to discrimination. This provision is reinforced by Article 10 which guarantees everyone "in full equality" a fair and public hearing before an independent and impartial tribunal. The right to marry, in Article 16, is guaranteed "without any limitation due to race, nationality or religion." Men and women are provided equal rights to marriage, during marriage and at its dissolution. Article 23 assures everyone the right to equal pay for equal work. As the provisions of the UDHR suggest, terms such as equality, equal protection, non-discrimination and without distinction seem to be used almost interchangeably. This usage also occurs in the treaties drafted shortly thereafter, the 1965 Convention on the Elimination of All

Bias' (1988) 32:3 International Studies Quarterly p. 275. Donnelly attributes the focus on racial discrimination and self-determination in the UN to the growing membership of African and Asian countries, not to the language of the Charter. Ibid., p. 277.

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Forms of Racial Discrimination (CERD), and the two Covenants 16 whose articles prohibiting discrimination also recognize that the provisions on equality cannot be taken to require absolute equal treatment, because some legal classifications distinctions may be appropriate or even necessary. 17 Indeed, express distinctions are made in some provisions: prohibiting imposition of the death penalty on those under the age of 18 at the time of the offense and on pregnant women (ICCPR art. 6(5)); requiring the separation of juvenile and adult offenders and accused persons from those convicted (ICCPR art. 10); and limiting some political rights to citizens of a state (ICCPR, art. 25). Among the early human rights treaties, only CERD, ILO Convention No. 111 (Employment and Occupation), and the 1960 UNESCO Convention on Discrimination in Education defined the word discrimination. Later, CEDAW 18 and the Migrant Workers Convention added their own provisions. 19 In general, the respective articles provide that for the purpose of each treaty, discrimination means any distinction, exclusion or restriction (CERD adds "or preference") which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise on an equal footing of human rights (CERD adds "and fundamental freedoms") in the political, economic, social, cultural, (CEDAW adds civil) or any other field (CERD adds "of public life"). Unlike Article 2(1) of the ICCPR and Article 14 of the European Convention on Human Rights (ECHR), which only address distinctions in the enjoyment of rights recognized by the respective treaties, CERD 16 International Covenant on Economic, Social and Cultural Rights, 19 December 1966, 993 UNTS, p. 3 (hereinafter ICESCR); International Covenant on Civil and Political Rights, 19 December 1966, GA Res. 2200A (XXI), 999 UNTS, p. 171 (hereinafter ICCPR). 17 It has long been held that treating unequals equally should be considered a wrong similar to treating equals unequally. This principle underlies the acceptance of affirmative action in favor of members of disadvantaged groups. See UN Doc. A/C.3/SR.1182 (1962), para. 17. And A/C.3/SR.1259. Members of the CCPR have said that affirmative measures in favor of a disadvantaged group may sometimes be "essential". UN Doc. CCPR/C/SR.189 (1980), paras. 10, 14. 18 Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, GA Res. 34/180, 1249 UNTS, p.13. 19 The UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by GA Resolution 45/158, 18 December 1990, contains a non-discrimination provision in Article 7: "States Parties undertake, in accordance with the international instruments concerning human rights, to respect and to ensure to all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in the present Convention without distinction of any kind such as to sex, race, color, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status."

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and CEDAW prohibit discrimination in respect to all rights and freedoms guaranteed by national and international law. Special temporary measures of preferential treatment for women or disadvantaged racial or ethnic groups or individuals are not considered discrimination if their sole purpose is to secure their advancement towards equality (CERD, Art. 1(4) and CEDAW Art. 4(2)). Recent texts have recognized that individuals may belong to more than one disfavored group, resulting in increased discrimination. The Durban Declaration and Program of Action, for example, recognized that racial discrimination may be aggravated by multiple forms of discrimination based on other grounds, such as sex, language, religion, political or other opinion, social origin, property, birth or other status. 20 The ILO 1958 Employment and Occupation Convention (No. 111) was perhaps the first international instrument to define discrimination. During the drafting, discrimination was tentatively defined to mean any adverse distinction which deprives a person of equality of opportunity or treatment in employment and occupation and which is made on the basis of race, color, sex, religion, political opinion, national extraction, or social origin. 21 The Committee of Experts on Discrimination proposed adding a provision to make clear that this definition should not apply to differentiations made on objective consideration of the genuine needs or inherent requirements of different types of employment.22 Another proposal, which became Article 5, excluded from the definition special measures of protection or assistance allowed by other ILO Conventions or recommendations and, more problematically, allowed any member to consider non-discriminatory other special protective measures based on the particular requirements of persons due to sex, age, disability, family responsibilities or social or cultural status. 23 In the end, Article 1 defined discrimination as any distinction, exclusion or preference made on the basis of race, color, sex, religion, political opinion, national extraction or social origin which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, with the exception that bona fide occupational requirements could be imposed. Member states could add further categories of prohibited distinction, but language, age and citizenship were omitted, while political opinion was deemed to exclude 20 Durban Declaration and Program of Action, adopted at the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (2001), para. 2. 21 Proceedings, LL. Conf., 40th session, 1957, p. 741. 22 LL. Conf., 42nd session, 1958, report IV 91, p. 29. 23 Proceedings, LL. Conf., 42 nd session, 1958, p. 713.

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measures taken against an individual suspected of or engaged in activities prejudicial to the security of the state24 - opening the door to considerable abuse. 25 UNESCO was established in part to realize gradually "the ideal of equality of educational opportunity without regard to race, sex or any distinctions, economic or social" (UNESCO Constitution, Art. 2(b)). On 14 December 1960, UNESCO adopted its Convention against Discrimination in Education, which entered into force on May 22, 1962. Article 1 of the Convention defines the term discrimination to include "any distinction, exclusion, limitation or preference which, being based on race, color, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education". The Convention adds examples of particular disapproved practices: (a) depriving any person or group of persons of access to education of any type on any level; (b) limiting any person or group of persons to education of an inferior standard; (c) establishing or maintaining separate educational systems or institutions for persons or groups of persons (except for girls and for linguistic and religious minorities that seek them); and (d) inflicting on any person or group of persons conditions which are incompatible with the dignity of man. Article 2(1) permits states to establish separate educational systems for boys and girls and is problematic because it requires only "equivalent" access to education and "equivalent" courses of study. Later, CEDAW's Article 10 strengthened the educational guarantees for girls and women by requiring that states provide the "same" rather than "equivalent" educational opportunities. States parties are required to change laws and practices that involve discrimination in education. They are also required

Article 4. The jurisprudence of the Human Rights Committee has allowed preferential treatment of those previously and wrongfully dismissed on political grounds. See. e.g., Stal/a Costa v. Uruguay, No. 198/1985, where the applicant complained of preferential treatment in admission to the public service given to former public officials who had been dismissed on ideological, political or trade-union grounds by the prior military regime. He complained that this preferential treatment unfairly prejudiced his own chances of gaining a public-service job. The Committee observed that those preferred were victims of violations of the right to equal citizen participation in public life under ICCPR Article 25 and as such were entitled to have an effective remedy under ICCPR Article 2, paragraph 3(a). The enactment of the law complained of was such a remedy. Thus, there was neither a violation of Article 25(c) nor discrimination within the meaning of Articles 2 and 26 of the Covenant. The alleged discrimination was found to be a permissible "measure of redress" to persons who had previously suffered from discrimination. 24

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to take positive measures to guarantee non-discrimination in education · by pnvate actors. 26 The ICCPR restates many of the provisions of the UDHR, but also imposes corresponding obligations on each state party to respect and ensure the rights recognized by the Covenant to all individuals within its territory and subject to its jurisdiction "without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." The General Assembly added Article 3, which specifies the equal rights of men and women, to emphasize and reinforce the obligation of non-discrimination. Article 26 calls for effective protection against discrimination with regard to all rights and benefits recognized by law and Article 20 imposes a duty to prohibit any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility, or violence. Taken together, the provisions make non-discrimination the "dominant single theme" in the Covenant. Like the ICCPR, the ICESCR prohibits discrimination of any kind in respect to the enjoyment of rights within the scope of the Covenant, with one notable and controversial exception. Article 2(3) provides that "developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals". Many western countries argued that this provision had destroyed a basic principle of the covenants, that of non-discrimination.27 Defenders said it was necessary to eliminate economic inequality between nationals of developing and developed countries. The most recent of the UN's core conventions on human ri~hts, the Convention on the Rights of Persons with Disabilities,2 is fundamentally about equality and non-discrimination, recognizing the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support. It proclaims that "discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human 26 During the preliminary studies and drafting of the Convention, states debated the question of protective and compensatory measures intended to assist those previously discriminated against, with the view prevailing that there should be no quota system because it would ignore individual merit. See UN Doc. E/CN.4/721, s. 5 and UN Doc. E/CN.4/740. 27 UN Doc. A/C3/SR.1207, p. 362. The paragraph was narrowly adopted 41-38, with 12 abstentions. UN Docs. A/5365, pp. 22-23; A/C3/L.1027/revs. pp. 1--4; A/5365, pp. 1516. 28 Adopted by the UN General Assembly on 13 December 2006. The Convention entered into force on 3 May 2008. As of May 2009, 36 states had ratified it.

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person". The key obligations of the parties are contained in Article 5, which emphasizes the equal rights of all persons, while calling for reasonable accommodation to recognize relevant differences: 1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.

Article 12 adds equal recognition in law, while the remainder of the Convention reflects the dual aim of equal treatment where possible but also respect for the different needs and diversity of those who are disabled. On the regional level, Article 14 of the ECHR proscribes discrimination in the enjoyment of Convention rights. Article 14 has been called "an almost parasitic provision, which has no independent existence as it is linked exclusively to the enjoyment of the rights and freedoms laid down in the other substantive provisions". 29 The European Court of Human Rights (ECtHR) has concluded that unlawful discrimination occurs where (i) there is different treatment of persons in analogous or relevantly similar situations and (ii) that difference in treatment has no "objective and reasonable justification." "Objective and reasonable justification" is established if the measure in question has a legitimate aim and there is "a reasonable relationship of proportionality between the means employed and the aim sought to be realized". 30 In the past the European Court often refused to consider a claim of discrimination after finding a violation of one of the rights in the Convention, but this approach seems to have changed in recent years. 31 29 Luzius Wildhaber, 'Protection against Discrimination under the European Convention on Human Rights - A Second-Class Guarantee?' (2002) 2 Baltic Yearbook of International Law, pp. 71-72. 30 See the Belgian Linguistic case, 23 July 1968, European Court of Human Rights, Application Nos. 1474/62, etc., para. 10. 31 In Dudgeon v. UK, 22 October 1981, European Court of Human Rights, Ser. A, Application No. 45, (1982) 4 European Human Rights Reports p. 149, for example, the

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Out of concern with the limitations of Convention Article 14, the Council of Europe concluded Protocol No. 12, which entered into force on Aprill, 2005. The Protocol prohibits discrimination in the enjoyment of any right set forth by law, in recognition of the need for an "independent" or "free standing" right to strengthen the Convention's protection of equality. The preamble to Protocol 12 reaffirms, however, that the principle of non-discrimination does not prevent states from taking positive action, provided that it is objectively and reasonably justified. Within the European Union, Article 13 of the EC Treaty gives specific powers to combat discrimination on grounds of sex, EU the racial or ethnic origin, religion or belief, age, disability or sexual orientation. Based on this mandate, the Council has passed two Directives prohibiting direct and indirect discrimination, including harassment, on grounds of race, religion and belief, disability, age, and sexual orientation related to employment and occupations, including education and vocational training, membership in professional or related bodies; social protection; access to and supply of goods and services; and "social advantages" (e.g., concessionary travel on public transport, reduced prices for access to cultural or other events and subsidized meals in schools for children from low-income families). 32 Article 1( 1) of the American Convention on Human Rights and Article 2 of the African Charter on Human and Peoples' Rights affirm the right of all persons to enjoy all guaranteed rights without discrimination. The American Convention's provision broadly prohibits discrimination on grounds that include "any other social condition" Court stated that ''there is no useful legal purpose to be served" in examining a claim of discrimination once a breach of another substantive right has been found, ibid., para. 69. Such an approach considerably undervalues the additional harm caused by being denied a right on a discriminatory basis. In Nachova and Others v. Bulgaria, 6 July 2005, European Court of Human Rights, Application Nos. 43577/98 and 43579/98, the Court saw matters differently. A Grand Chamber held that the authorities failed in their duty under Article 14 of the Convention taken together with Article 2 to take all possible steps to investigate whether or not discrimination may have played a role in the killings of two young Roma by police officers. According to the Court, state authorities have the duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have been involved in deaths at the hands of state agents. "Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights" (para. 158, emphasis added). The Court added that a failure to take such motives into account may itself violate Article 14, ibid. 32 Council Directive 2000/43/EC, 29 June 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (the 'Race Directive') and Council Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation (the 'General Framework Directive').

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suggesting that it is an open-ended prohibition of discrimination, like some UN treaties that prohibit discrimination on the basis of "other status". Article 24 adds a guarantee of equality before the law and equal protection of the law like Article 26 of the ICCPR. In Advisory Opinion OC---4/84, the Inter-American Court of Human Rights held that Article 1(1) is dependent on linkage to a right guaranteed by the Convention while Article 24 guarantees equality not only in the enjoyment of the rights set forth in the Convention but also in the application of any domestic legal norm. The African Charter, in addition to its Article 2 general prohibition on discrimination, adds that every individual shall be equal before the law and entitled to equal protection of the law (Art. 3), thus adding a 'free standing' guarantee of non-discrimination similar to Article 26 of the ICCPR and Article 24 of the American Convention on Human Rights. Article 12(5) recognizes the considerable problem of mass and discriminatory expulsions of non-nationals. Article 18(3) further provides that each state party shall ensure the elimination of discrimination against women, as well as protection for the rights of women. Finally, unlike other international and regional instruments that focus only on the individual, the African Charter expressly prohibits domination or discrimination of one group of people by another group, including with respect to economic, social and cultural development. On 11 July 2003, the African Union supplemented the Charter with a separate detailed Protocol on the Rights of Women in Africa, which entered into force on 25 November 2005, concentrating on the principle of equality with regard to sex and gender. It prohibits direct and indirect discrimination "in all spheres of life" and promotes positive action. All human rights treaties that permit states to suspend rights by derogation during periods of national emergency include a nondiscrimination requirement in the relevant provisions. Art. 4 of the ICCPR, for example, provides that any measures taken by a state following a notified derogation may "not involve discrimination solely on the ground of race, color, sex, language, religion or social origin". The language of Article 27 of the American Convention is virtually identical. The pervasiveness of the treaty obligations of nondiscrimination, equal rights, and equality before the law, taken with domestic laws and practices, provide adequate evidence that a norm of non-discrimination in the respect and observance of human rights and fundamental freedoms is now viewed as part of the corpus of customary

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international law. 33 Indeed, the Inter-American Court of Human Rights has termed the prohibition of discrimination part ofjus cogens. 34 Taking another approach, the former European Commission on Human Rights held that some forms of discrimination may amount to prohibited . 35 degradmg treatment. III. THE MEANING AND SCOPE OF PROHIBITED DISCRIMINATION

Some of the early UN special rapporteurs appointed by the SubCommission made efforts to define the term discrimination or fell back on the dictionary definition. 36 Nearly all of the rapportuers acknowledged that not all differential treatment constitutes discrimination, but only that which is unreasonable, unjustified, and adverse to the individual. Special measures to accommodate those with, e.g., physical disabilities would thus be legitimate. In sum, differentiations based on merit, capacity or individual ability are permitted, but classifications based on purported or stereotypic group characteristics are not. More recently, human rights treaty bodies have interpreted and applied the norms against discrimination and in favor of equality in judgments, decisions, comments on state reports and general comments. The tribunals, applying or articulating definitions of discrimination, have determined which groups of individuals are protected, the nature of the prohibited acts or omissions, the purpose or effect of the actions taken, and what distinctions may be permissible. The jurisprudence on each of these issues will be reviewed in the following materials.

33 See Theodor Meron, 'The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination' (1985) 79:2 American Journal of International Law p. 283, citing Restatement of the Foreign Relations Law of the United States (Revised) sec. 702 (referring to the prohibition of racial discrimination as a norm of customary international law). 34 Juridical Condition of the Undocumented Migrants, 17 September 2003, InterAmerican Court of Human Rights, Advisory Opinion OC-18/03, Ser. A, No. 18. 35 East African Asians v. the United Kingdom, 14 December 1973, European Commission on Human Rights, Application No. 4403/70. 36 Hernan Santa Cruz, in his study adopted the definition contained in the Random House Dictionary of the English Language: "to make a distinction in favor or against a person or thing on the basis of the group, class or category to which the person or thing belongs, rather than according to actual merit"; Santa Cruz, supra note 10.

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A. Distinctions, Exclusions, Restrictions or Preferences The UN treaty bodies share a common approach to the meaning of discrimination. The UN Human Rights Committee, in paragraph 7 of its General Comment 18, defined 'discrimination' for purposes of ICCPR Article 2 and Article 26 in language very similar to that contained in several other agreements: The Committee believes that the term 'discrimination' as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, color, 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. 37

In practice, while preferences accorded to dominant groups generally are deemed discriminatory, most treaties and jurisprudence permit or even require that the disadvantaged situation of vulnerable or disfavored groups be the focus of positive measures. The concept of taking into account relevant differences is long-standing. In the South West Africa cases, Judge Tanaka's dissenting opinion set forth the basic theory: The principle of equality before the law does not mean ... absolute equality, namely the equal treatment of men without regard to individual, concrete circumstances, but it means ... relative equality, namely the principle to treat equally what are equal and unequally what are unequal ... To treat unequal matters differently according to their inequality is not only permitted but required. 38

At the third session of the Commission on Human Rights, Eleanor Roosevelt similarly noted that equality did not mean identical treatment for men and women in all matters - maternity benefits, for example, necessitated differential treatment. 39 Taking this into account, an early draft of the UDHR prohibited only "any arbitrary discrimination". The word arbitrary was deleted because most delegates

37 CCPR, General Comment 18: Non-discrimination (1989), in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies (HRI/GEN/1/Rev.8), 8 May 2006, p 185. 38 South West Africa cases (Liberia v. South Africa, Ethiopia v. South Africa), 18 July 1966, International Court of Justice, dissenting opinion of Judge Tanaka, I.C.J. Reports 1966, p. 305. 39 UN Doc. E/CN.4/SR.50, p. 9.

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agreed that in law discrimination means harmful or invidious (arbitrary) distinctions and not every differentiation. 40 Positive action in favor of individuals or groups who have been subject to discrimination is a way to recognize the resulting inequality. ICCPR General Comment 4 provides that "Article 3, as Articles 2(1) and 26 ... requires not only measures of protection but also affirmative action to ensure the positive enjoyment of those rights". General Comment 18 similarly recognized the need for positive action "in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant". CEDAW's Article 4(1) permits positive measures by states to facilitate equality. International tribunals may approve positive action, but they insist that all such action be reasonable, objective, and proportionate to their goals. Taking this into account, positive action is often limited in time and scope to respond to the specific disadvantage suffered by a person or group. In General Comment 23 on ICCPR Article 27, the Human Rights Committee recognized that the minority rights protected under Article 27 are individual rights. However, it stressed that "positive measures by states may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with other members of the groups" (para. 6.2). Positive action is sometimes criticized because it runs counter to a strictly formal notion of equality. It also tends to focus on group rather than individual treatment. As a result many systems reject inflexible positive measures, such as strict quotas, in favor of approaches that focus more on the rights of the individual. Nonetheless, the HRC has approved the use of quotas in several of its country reports. For example, in its concluding observations on India, it approved a constitutional amendment in India that reserves one third of seats in elected local bodies for women. It also approved the practice of reserving elected positions for members of certain tribes and castes. 41 Regionally, European case law has defined discrimination as inequality of an arbitrary nature, or distinctions lacking an objective and reasonable justification or disproportionate in nature. 42 States parties have a margin of appreciation, but certain grounds for distinctive treatment may require "particularly serious" reasons in order to be

40 UN Docs. E/CN.4/99, 24 May 1948, E/CN.4/82/add.8, 6 May 1948, and E/CN.4/SR.52, pp. 6, 8. 41 UN Doc. CCPR/C/79/Add.81, para. 10. 42 Belgian Linguistic case, supra note 30, sec. 1B, para. 10.

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justified. 43 If the applicant proves that a distinction has been made, it is up to the state to prove that the difference in treatment is reasonably and objectively justifiable, i.e. pursuing a legitimate aim and proportionate to that aim. Reasonable distinctions and those that are designed to promote rather than to undermine equality are not discriminatory, as long as they are not disproportionate to their aim. In Thlimmenos v. Greece the Court held that discrimination also arises if states "without objective and reasonable justification fail to treat differently persons whose situations are significantly different". 44 The American Convention on Human Rights not only allows, but may require positive action to ensure equality. In its 1996 Human Rights Report on Ecuador, the Inter-American Commission on Human Rights (IACHR) said: Where a group has historically been subjected to forms of public or private discrimination, the existence of legislative prescriptions may not provide a sufficient mechanism for ensuring the right of all inhabitants to equality within society. Ensuring the right to equal protection of and before the law may require the adoption of positive measures, for example, to ensure non-discriminatory treatment in education and employment, to remedy and protect against public and private discrimination.

In its 1993 Annual Report to the OAS General Assembly, the Commission similarly stated that the broad principles of Articles 1 and 24 require state action to address inequalities. The Inter-American system has often cited to the European jurisprudence on discrimination, but has also developed its own approach. In Case 3/98, Carlos Garcia Saccone v. Argentina, the I-A Commission defined 'unequal treatment' for the purposes of American Convention Article 24 as: (i) the denial of a right to someone which is accorded to others; (ii) diminishing the right to someone while fully granting it to others; (iii) The imposition of a duty on some which is not imposed on others; or (iv) the imposition of a duty on some which is imposed less strenuously on others. Allegations of unequal treatment require a standard of comparison and in this regard, the Commission referred to the test set out in Advisory Opinion OC-4/84: 43 'Belgian Linguistic Case' (1968) 11 Yearbook of the European Convention on Human Rights p. 832; 'National Union of Police Case' (1975) 18 Yearbook of the European Convention on Human Rights p. 294; Sunday Times case (The Sunday Times v. United Kingdom), 26 April 1979, European Court of Human Rights, Application No. 6538/74, Ser. A, No. 30, (1979-80) 2 European Human Rights Reports p. 245. 44 Thlimmenos v. Greece, 6 April 2000, European Court of Human Rights, Appliction No. 34369/97, para. 44.

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Dinah Shelton there would be no discrimination in differences in treatment of individuals by a state when the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review. These aims may not be unjust or unreasonable, that is, they may not be arbitrary, capricious, despotic or in conflict with the essential oneness and dignity ofhumankind. 45

In Case 73/00, Marcelino Hanriquez et al. v. Argentina, the Commission stated that under Article 24 a distinction involves discrimination when "a) the treatment in analogous or similar situations is different, b) the difference has no objective and reasonable justification and c) the means employed are not reasonably proportional to the aim being sought" (para. 37). The Commission has also employed the European Court's demand for 'weighty reasons' regarding the justification for different treatment based on sex. In Maria Eugenia Morales de Sierra v. Guatemala, Case 4/01, for example, the Commission noted that: Statutory distinctions based on status criteria, such as, for example, race or sex, therefore necessarily give rise to heightened scrutiny. What the European Court and Commission have stated is also true for the Americas, that as "the advancement of the equality of the sexes is today a major goal ... very weighty reasons would have to be put forward" to justify a distinction based solely on the grounds of sex.

For its part, the Inter-American Court, in Advisory Opinion OC18/03, made clear its view that the American Convention obliges states to take positive measures to promote equality. The Court held that: States are obliged to take affirmative action to reverse or change discriminatory situations that exist in their societies to the detriment of a specific group of persons. This implies the special obligation to protect that the State must exercise with regard to acts and practices of third parties who, with its tolerance or acquiescence, create, maintain or promote discriminatory situations. 46

45 Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica, 19 January 1984, Inter-American Court of Human Rights, Advisory Opinion No. 4, para. 10, Ser. A, No. 4, (1984) 5 Human Rights Law Journal p. 161. 46 OC-18, para. 104.

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B. With the Purpose or Effect ofNullifying or Impairing Guaranteed Rights Most treaties, like ICCPR Article 26, address measures having the purpose or the effect of nullifying or impairing the equal recognition, enjoyment or exercise by all persons of their rights and freedoms. Thus, it is not necessary to demonstrate intent to discriminate and many cases have been based on disparate impact. In Singh Binder v. Canada, for example, the Human Rights Committee found a Canadian law to be indirectly discriminatory because it required all persons to wear hard hats in certain jobs, which had a negative impact on Sikhs whose religion requires them to wear turbans. The Canadian government ultimately prevailed in the matter, however, when it demonstrated that the disparate treatment was justified as "reasonable and directed towards objective purposes that are compatible with the Covenant". 47 The European Court's approach to the issue was revealed in Hugh Jordan v. the United Kingdom where the Court said: "Where a general policy or measure has disproportionately prejudicial effects on a particular group, it is not excluded that this may be considered as discriminatory notwithstanding that it is not specifically aimed or directed at that group."48 Nonetheless, the European Court has not found a violation of Article 14 arising out of disparate impact. In Advisory Opinion OC-18/03, the Inter-American Court also suggested that disparate impact may give rise to a violation, opining that "States must abstain from carrying out any action that, in any way, directly or indirectly, is aimed at creating situations of de jure or de facto discrimination" (para. 103). In general, however, it appears that states may enact and enforce uniform measures concerning the allocation of benefits, even where there is a disparate impact on particular individuals or groups. The Human Rights Committee has suggested that it will afford more deference to state authorities when the issue is one of distribution of economic resources, where, in its view it is for the legislature of each country, which best knows the socioeconomic needs of the society concerned, to try to achieve social justice in the concrete context. Unless the distinctions are manifestly discriminatory or arbitrary, it is not for the Committee to re-evaluate

47 See also Althammer et al. v. Austria, 8 August 2003, No. 998/2001; Simunek et al. v. Czech Republic, 19 July 1995 No. 516/1992. 48 Hugh Jordan v. United Kingdom, 4 May 2001, European Court of Human Rights, Application No. 24746/94, para. 154.

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Dinah Shelton the complex socio-economic data and substitute its judgment for that of the legislatures of States parties. 49

In the African system, the text of Articles 2 and 3 does not refer to the "purpose or effect" of actions, but the jurisprudence of the African Commission suggests that indirect discrimination is prohibited. In the case of Association Mauritanienne des Droits de !'Homme v. Mauritania the African Commission stated that: Article 2 of the Charter lays down a principle that is essential to the spirit of this Convention, one of whose goals is the elimination of all forms of discrimination and to ensure equality among all human beings. The same objective underpins the Declaration of the Rights of People Belonging to National, Ethnic, Religious or Linguistic Minorities adopted by the General Assembly of the United Nations in resolution 47/135 of 18 December 1992. From the foregoing, it is apparent that international human rights law and the community of States accord a certain importance to the eradication of discrimination in all its guises (para. 13 1).

Article 18(3) also makes reference to the prohibition of "every discrimination" against women in accordance with international declarations and covenants. International tribunals have also expanded the rights included in the guarantee of non-discrimination. In the Broeks and Zwaan-de Vries cases, the Human Rights Committee agreed that ICCPR Article 26 is not limited to ensuring equality with respect to civil and political rights guaranteed by the Covenant. Thus, while the Covenant does not require any state to enact legislation to provide for social security, when such legislation is adopted in the exercise of a State's sovereign power, then such legislation must comply with the equal rights guarantees in Article 26 of the Covenant. 50 The Committee's General Comment 18 explains 49 Oulajin and Kaiss v. the Netherlands, 23 October 1992, separate opinion, Nos. 406/1990 and 426/1990. 50 S. W.M Broeks v. the Netherlands, 9 April 1987, No. 172/1984, para. 12.4. The Committee has extended Art. 26 to other economic and social benefits, including various types of pensions (Danning v., 9 April 1987, No. 180/1984, Gueye et al. v. France, 3 Ari! 1989, No. 196/1983, Pauger v. Austria, 26 March 1992, No. 415/1990, Pepels v. the Netherlands, 19 March 1983, No. 484/1991, Hoofdman v. the Netherlands, 3 November 1998, No. 602/1994, Johannes Vos v. the Netherlands, 26 July 1999, No. 786/1997); unemployment and educational benefits (S. W.M Broeks v. the Netherlands, 9 April 1987, No. 172/1984, Hendrika Vos v. the Netherlands, 29 March 1989, No. 218/1986, Blom v. Sweden, 4 April 1988, No. 191/1985, Lindgren et al. v. Sweden and Lundquist et al. v. Sweden, 9 November 1990, Nos. 198 and 199/1988, Waldman v. Canada, 3 November 1999, No. 694/1996; property rights (Adam v. Czech Republic, 23 July 1996, No. 586/1994); employment (Sprenger v. the Netherlands, 22 March 1991, No. 395/1990) and severance pay (Orihuela Valenzuela v. Peru, 14 July 1993, No. 309/1988).

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that Article 26 provides an autonomous right by prohibiting discrimination in law or in fact in any field regulated and protected by public authority. In other words, the ICCPR requires that any rights or benefits granted by legislation must be provided without discrimination, even if there is no legal obligation on the State to provide such rights or benefits in the first place.

C. Based on Identification with a Specific Group The non-discrimination clauses single out certain distinctions as unacceptable: race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. ICCPR Article 26 is not a closed list, because it adds "other status" to the list of prohibited grounds of discrimination. In Gueye v. France, for example, the Human Rights Committee held that, although the ICCPR did not explicitly mention nationality, discrimination on grounds of nationality was prohibited by the words "other status" in Articles 2 and 26. Applicants under the Optional Protocol to the ICCPR must allege that difference in treatment was attributable to their status as a member of an identifiable and distinct group. 51 This is not the same as arbitrary action or abuse of discretion in making distinctions between individuals. 52 Prosecutorial discretion, for example, may be exercised in an arbitrary or abusive manner, without it necessarily constituting discrimination. Thus, the Human Rights Committee found no discrimination in B.d.B. et al. v. the Netherlands, where a public administrative agency notified some physiotherapists about insurance obligations but not others. The Committee noted that the authors "have not claimed that their different treatment was attributable to their belonging to any identifiably distinct category which could have exposed them to discrimination on account of any of the grounds enumerated or "other status" referred to in Article 26". This does not mean that rights 51 B.d.B. et al. v. the Netherlands, 30 March 1989, No. 273/1989. Groups recognized as falling within the "other status" category include grandparents, marital status, nationality, citizenship, age, unemployed, and having or not having a law degree. See, e.g: Danning v. the Netherlands, 9 April 1987, No. 180/1984; Sprenger v. the Netherlands, 31 March 1992, No. 395/1990, Hoofdman v. the Netherlands, 3 November 1998, No. 602/1994, Gueye et al. v. France, 3 April 1989, No. 196/1985, Griffin v. Spain, 4 April 1995, No. 493/1992, Adam v. Czech Republic, 23 July 1986, No. 496/1994, Jong v. the Netherlands, 16 July 2001, No. 855/1999, Oulajin and Kaiss v. the Netherlands, 23 October 1992, Nos. 406 and 426/1990, Gomez v. Spain, 22 October 2001, No. 865/1999. The Committee has also indicated that sexual orientation and illegitimacy are included. 52 See Gauthier v. Canada, 7 April 1999, No. 633/1995 and Tufyal Choudhury, 'Interpreting the Right to Equality under Article 26 of the International Covenant on Civil and Political Rights', (2003) 8:1 European Human Rights Law Review pp. 24-52.

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were not violated: due process may be implicated or the right to a remedy for arbitrary administrative action. Such exercises of discretion may be reviewed and need to be justified, without constituting discrimination. Finding discrimination requires identifying the appropriate comparison groups. In Ballantyne et al. v. Canada, English-speaking residents of Quebec argued that the language law of Quebec, which prohibited commercial shop signs in a language other than French, discriminated against them on the grounds of language in violation of Article 26. The Committee compared the applicants' situation to that of French speakers in Quebec and found no discrimination because the restriction on the use of the French language applied equally to both groups; the Committee failed to examine the disparate impact on English shop-owners, perhaps because English-speaking citizens represent a majority in Canada as a whole. 53 Certain distinctions are particularly problematic. For example, differences in laws and practices within federal states have sometimes been challenged as discriminatory by those who reside in a state or territory whose laws are unfavorable compared to those of another federal unit. In Hesse v. Australia, the CCPR found that differences among Australian states in the length of the statutes of limitations were insufficient to substantiate a claim of discrimination. In contrast, the Inter-American Human Rights Commission determined in Roach and Pinkerton v. the United States that disparate sentencing laws for juvenile offenders among the states within the United States constitute unlawful discrimination. Claims of discrimination based on nationality and claims of religious discrimination have proven particularly contentious. In respect to the first issue, certain rights, not least of which is the right to enter and remain in a country, may be restricted to nationals of a state. Both CERD and ICESCR have general provisions concerning the rights of aliens. CERD Article 1(2) establishes that the entire Convention is inapplicable to distinctions, exclusions, restrictions or preferences made by a state party between citizens and non-citizens, but Article 1(3) precludes 53 Ballantyne et al. v. Canada, 31 March 1993, Nos. 359/1989 and 385/1989. The Committee did find a violation of Article 19 (freedom of expression) and also held that the authors could not claim the rights of linguistic minorities under Article 27 of the ICCPR because looking at the country as a whole, English-speakers constitute the majority. Contrast Diergaardt et al. v. Namibia, 25 July 2000, No. 760/1997 in which the authors claimed that the failure by the Namibian government to introduce legislation to permit the use of official languages other than English denied them the use of their mother tongue in public life in violation of Article 26. The Committee agreed that the state's action disproportionately affected Afrikaans speakers and violated Article 26.

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singling out any particular nationality for discriminatory treatment in respect to nationality, citizenship or naturalization. In B.MS. v. Australia, CERD assumed that a distinction aimed at or adversely affecting a particular group of non-citizens would violate the Convention. The ICCPR applies to "all persons" unless otherwise specified, as the Human Rights Committee has emphasized in its General Comment 15. Nonetheless, ICCPR Article 25 allows states to limit the political rights of aliens, while freedom of movement is guaranteed only to those 'lawfully' within a country. Article 13 protects aliens against arbitrary treatment, providing that an alien lawfully residing on the territory of a state party may be expelled from that territory only in pursuance of a decision reached in accordance with law. Except where compelling reasons of national security dictate different treatment, the alien should also be allowed to submit reasons against being expelled, be granted representation and be accorded a review by a competent authority. In its concluding observations on periodic state reports, the Human Rights Committee has criticized some state practices that discriminate on grounds of nationality, including distinctions between citizens by birth and those who are naturalized, 54 requirements for nonnationals that do not apply to nationals, 55 and stringent criteria for citizenship that discriminate against minority or foreign groups who are permanent residents. 56 Other disapproved measures include the failure to confer nationality on stateless persons born in the state, stripping persons of citizenship who are critical of the government, mass expulsions of non-nationals and discriminatory rules that prejudice women in the transmission of nationality to children. 57 Tribunals generally agree that naturalization, although it is the prerogative of the state, should be

54 Human Rights Committee, Concluding Observations: Ireland (A/48/40) (1993), paras. 551 et seq. 55 Human Rights Committee, Concluding Observations: Japan (A/49/40) (1994), paras. 98 et seq. 56 Human Rights Committee, Concluding Observations: Latvia (A/50/40) (1995), paras. 334 et seq. Examples of discriminatory criteria include a language requirement that no foreigner can meet (e.g., Human Rights Committee, Concluding Observations: Estonia (A/51/40) (1996), paras. 99 et seq). 57 In its concluding observations on state reports, the CESCR has criticized laws preventing a woman from vesting nationality in her child or depriving women of their original nationality when they marry foreign men. See e.g., CESCR, Concluding Observations: Egypt (E/2001/22), p. 38, paras. 159 and 175; and CESCR, Concluding Observations: Jordan (E/2001/22), p. 49, para. 234.

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granted on the basis of objective criteria and within a reasonable time frame, especially for persons who have lived in the state for many years. The Human Rights Committee has examined cases of discrimination on the grounds of nationali~ or "national origin" in the context of (i) employment, 58 (ii) property, 9 (iii) voting rights, (iv) tax and social security, (v) pensions60 and (vi) immigration. In these cases, "mere administrative inconvenience" cannot be invoked to justify unequal treatment, nor can differences in economic, social or financial conditions. Deportation of migrant workers who have lived and worked in the state for a long period has also been criticized. 61 The European Court of Human Rights has also condemned discrimination on the basis of nationality, 62 concluding that "very weighty reasons" would have to be put forward before it would regard differential treatment on the basis of nationality as being in compliance with the European Convention. 63 The African Commission has been skeptical of changes in nationality laws or application of such laws to deprive individuals of their nationality. In Comm. No. 97/93, John K. Madise v. Botswana the African Commission held that the deprivation of the applicant's citizenship by Botswana denied him the right of equal access to the public services of the country guaranteed under Article 13(2) of the Charter. 64 In Comm. 159/96, UJDH, FIDH and Others v. Angola, the African Commission held that mass expulsions of any category of Karakurt v. Austria, 4 April 2002, No. 965/2000. Adam v. Czech Republic, 23 July 1986, No. 496/1994, Simunek et al. v. Czech Republic, 19 July 1995 No. 516/1992, Blazek et al. v. Czech Republic, 12 July 2001, No. 857/1999, and Des Fours v. Czech Republic, 30 October 2001, No. 747/1997, Drabek v. Slovakia, 14 July 1997, No. 643/1995, Malik v. Czech Republic, 21 October 1998, No. 669/1995, and Schlosser v. Czech Republic, 21 October 1998, No. 670/1995. 60 In Gueye et al. v. France, 3 April 1989, No. 196/1985. 61 See e.g., CESCR, Concluding Observations: Dominican Republic (E/1991/23), p. 55, para. 249; and CESCR, Concluding Observations: Nigeria (E/1999/22), p. 27, para. 105. 62 See e.g.,Gaygusuz v. Austria, 16 September 1996, European Court of Human Rights, Application No. 17371/90. 63 See also Kaua Poirrez v. France, 30 September 2003, European Court of Human Rights, Application No. 40892/98; John Murray v. the United Kingdom, 8 February 1996, European Court of Human Rights, Application No. 18731/91 and Moustaquim v. Belgium, 18 February 1991, European Court of Human Rights, Application No. 12313/86. 64 Legal Resources Foundation v. Zambia, Comm. 211/98 similarly resulted in the Commission finding a violation, this time of Article 2, due to a proposed new constitutional provision that required anyone seeking the office of the President to prove that both parents were Zambians by birth or descent. The African Commission made clear that any measure which seeks to exclude a section of the citizenry from participating in the democratic process, as this constitutional amendment sought to do, is discriminatory and falls foul of the Charter. 58 59

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persons, whether on the basis of nationality, religion, ethnic, racial or other considerations "constitute a special violation of human rights". 65 The Commission also stated that "a government action specially directed at a specific national, racial, ethnic or religious group is generally qualified as discriminatory in the sense that none of its characteristics has any legal basis" (para. 15). In its 2003 Advisory Opinion OC-18/03, the Inter-American Court of Human Rights examined fully the issue of discrimination against alien migrant workers. According to the Court, a state's human rights obligations includes an obligation to take affirmative action, to avoid taking measures that restrict or infringe a fundamental right, and to eliminate measures and practices that restrict or violate a fundamental right. The general obligation to respect and ensure the exercise of rights is imposed on States to benefit the persons under their respective jurisdictions, irrespective of the migratory status of the protected persons. The Court advised further that: States may not discriminate or tolerate discriminatory situations that prejudice migrants. However, the State may grant a distinct treatment to documented migrants with respect to undocumented migrants, or between migrants and nationals, provided that this differential treatment is reasonable, objective, proportionate and does not harm human rights ... The migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment (para. 119).

The opinion suggests more expansive rights and corresponding state obligations than are probably found in the laws and practices of most states. The area of religious discrimination is also problematic, because the desire to practice or manifest religious belief often leads individuals to claim exemptions from laws neutral on their face. It is extremely difficult to distinguish between the permissible enforcement of laws that have a legitimate need for uniform applicability and those whose enforcement amounts to unwarranted discrimination against a particular religion because its different beliefs entitle it to different treatment. Neutral government regulations--ones that do not demand adherence to religion in general or a specific religion in particular65 See also OMCT and others v. Rwanda, Comm. Nos. 27/89, 46/91, 49/91, 99/93. In RADDHO v. Zambia Comm. 71/92, the manner of the expulsions violated the Charter. The Commission stated that "simultaneous expulsions of nationals of many countries does not negate the charge of discrimination. Rather the argument that so many aliens received the same treatment is tantamount to an admission of a violation of Article 12(5)" (para. 25).

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should generally apply to all persons in society. However, certain exemptions or accommodations need to be recognized, where the governmental interest can be served by other means and where the demands of the law are particularly onerous on religious objectors. 66 Difficult issues may arise where normal activities or requirements of, e.g., a school, including dress codes, compel a student to act in contravention of religious beliefs. The state has a legitimate interest in conducting a consistent and comprehensive educational program. If the religious beliefs result in seeking exemptions that would substantially disrupt the educational program or interfere with the rights of other students, the authorities may legitimately decide that exemption is not warranted, especially if alternative schooling is available that conforms to the religious dictates of the student. Nonetheless, guarantees of equality and non-discrimination in matters of religion and belief may imply that everyone has the right to reasonable accommodation in employment, in military or alternative service, schools and prisons, for manifestations of their religion or belief. Achieving appropriate accommodation may require recognizing indirect discrimination or actions based on religious prejudice. 67 In Thlimmenos v. Greece, the European Court held that Greek legislation discriminated on the basis of religion. Greek authorities had refused to appoint the applicant, a Jehovah's Witness, as a chartered accountant, because he had a previous criminal conviction for disobeying an order to wear a Greek military uniform. The applicant proved that he refused to wear military uniform as a conscientious objector, because Jehovah's Witnesses are committed to pacifism. The Court found that Greek law wrongly treated him like any other criminal, whereas his criminal conviction arose from the exercise of his freedom of religious belief; the law's failure to make the distinction was discriminatory. Other problems stem from laws regulating religions and their relationship with the state. Some national constitutions establish the primacy of a particular religion and grant it privileges that are not afforded other religions or non-believers, raising issues of equality and non-discrimination. Conversely, governments sometimes repress religious activities, providing that no one may invoke religious liberty contrary to secular law. International jurisprudence has recognized that the existence of established or official state religion can result in 66 See Cha 'are Shalom Ve Tsedek v. France, 7 April 1997, European Court of Human Rights, Application No. 27417/95. 67 See e.g., Hojjmann v. Austria, 23 June 1993, European Court of Human Rights, Application No. 12875/87; Palau-Martinez v. France, 16 December 2003, European Court of Human Rights, Application No. 64927/01.

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discrimination against other religious groups. In Waldman v. Canada, the Human Rights Committee held that where a state party chooses to provide public funding to religious schools, the funding must be made available without discrimination. In Canea Catholic Church v. Greece, the European Court of Human Rights similarly found a violation of Article 14 (non-discrimination) in conjunction with Article 6(1) (right to a fair hearing) because both the Greek Orthodox Church and the Jewish community had legal personality to protect their property rights under Greek law, but the Roman Catholic Church did not and there was no objective and reasonable justification for it to be treated any differently.

D. Arbitrary, Unreasonable, Disproportionate or Unjustified Not all distinctions in law or practice are unjustified. Ap restrictions are perhaps those most often found to be reasonable. 6 In Lovelace v. Canada, a Canadian law imposed different treatment of men and women in identical circumstances, depriving the applicant of her 'Indian' status and the benefits that came with such status, because she married a nonIndian. The Human Rights Committee regarded the measure as establishing de jure discrimination on the ground of sex and focused on whether such interference was justified. The Committee said that distinctions "must have both a reasonable and objective justification and be consistent with the other provisions of the Covenant, read as a whole" (para. 16). Since the stated purpose of the relevant part of the Indian Act was to preserve the identity of the tribe and Lovelace's marriage had broken up, the Committee decided that to deny her the right to reside on the reserve was not reasonable, because it was not necessary to preserve the identity of the tribe. 69 68 See e.g., Love et al. v. Australia, 25 March 2003, No. 983/2001; Schmitz-de-Jong v. the Netherlands, 16 July 2001, No. 855/1999. 69 Lovelace v. Canada, 30 July 1981, No. 24/1977, For other cases assessing the reasonableness of measures making distinctions on the ground of sex, see S. W.M Broeks v. the Netherlands, 9 April 1987, No. 172/1984, Zwaan de Vries v. the Netherlands, 9 April 1987, No. 182/1984, Pauger v. Austria, 26 March 1992, No. 415/1990 and Johannes Vos v. the Netherlands, 26 July 1999, No. 786/1997, wherein the Committee held that distinctions on the grounds of sex in social security laws had no reasonable or objective aims and thus violated Article 26 of the ICCPR. See also Ave/lanai v. Peru, 28 October 1988, No. 202/1986 (a Peruvian law that prevented married women from representing matrimonial property before the courts held to violate Article 26); Young v. Australia, 6 August 2003, No. 941/2000 (the State had failed to show reasonable and objective reasons for the unequal treatment of same-sex partners compared to unmarried heterosexual partners) and the Mauritian Women case (Mauritian Women v. Mauritius), 9 April 1981, No. 35/1978 (Mauritian immigration law that limited residency rights of alien husbands of Mauritian women but not of alien wives of Mauritian men, discriminated on the grounds of sex).

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Views about the reasonableness of distinctions may change over time and this inherent subjectivity has led to some inconsistency in the jurisprudence. In Jarvinen v. Finland, for example, the author claimed that new Finnish legislation requiring conscientious objectors to do 16 months alternative civilian service compared to eight months for military service discriminated against him on the basis of philosophical opinion. The Committee found that the prolongation of the term for alternative civilian service was based on reasonable and objective criteria, but in Fain v. France, the Committee reversed itself, finding that a longer term of alternative service for conscientious objectors violated Article 26 on the grounds of opinion, rejecting the State's argument that doubling the length of service was the only way to test the sincerity of an individual's convictions. 70 IV. THE MEANING OF DISCRIMINATION

Based on the above, one may conclude that discrimination involves a distinction of any kind (exclusion, preference, limitation or restriction) between similarly situated individuals or groups unless there is an objective and reasonable justification and the measure of distinction is proportional to the aim. The principle of equality is the positive side of this prohibition, but raises the issue of whether the obligation is one of equality of opportunity or equal outcomes, with its redistributive consequences. The Racial Committee seems to have adopted the second position and decided that the Convention is aimed at ensuring that equality is actually enjoyed in practice. 71 One consequence is that disparate impact, without a motivation of discrimination, may still be prohibited, since the goal is de facto equality. Such demands for equality of outcome also may require addressing historical injustices that created systemic patterns of inequality. In addition to direct and indirect discrimination, there may be a requirement that states reasonably accommodate differences, by modifying laws and practices to make it possible for a qualified individual to apply for, perform the essential functions of, and enjoy the benefits and privileges available to others. The requirement to

70 Jarvinen v. Finland, 25 July 1990, No. 295/1988, Fain v. France, 11 July 1997, No. 666/1995. See also H.A.E.D.J. v. the Netherlands, 30 October 1989, No. 297/1988; R.T.Z. v. the Netherlands, 5 November 1987 No. 245/1987; MJ.G. v. the Netherlands, 24 March 1988, No. 267/1987, and Drake and Julian v. New Zealand, 3 April 1997, No. 601/1994. 71 Statement by CERD at the 1978 World Conference to Combat Racism and Racial Discrimination (UN Doc. A/33/18) (1978), pp. 108, 110.

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accommodate difference has arisen most frequently in the context of disabilities. The principle of equality does not exclude distinctions, and distinctions do not amount to wrongful discrimination where (1) differentiations are based on character and conduct seen as matters of individual choice (e.g. honesty, carefulness, industriousness, morality, etc.) or (2) differentiations are based on giving effect to competing and compelling social values even when the relevant individual characteristics are innate and not matters of choice (physical strength for firefighters, for example). Thus, employers may lawfully discriminate based on certain personal characteristics such as race or religion in limited circumstances where they are essential to the job. Based on these concepts, during the drafting of the ICCPR's Article 26, it was affirmed that equality does not require identity of treatment and permits instead "reasonable differentiations" between individuals or groups of individuals on relevant and material grounds. 72 Earlier, the UN Secretariat submitted memoranda to the former UN SubCommission on Prevention of Discrimination and Protection of Minorities that similarly defined discrimination to include "any conduct based on a distinction made on grounds of natural or social categories, which have no relation either to individual capacities or merits, or to the concrete behavior of the individual person". 73 Much of this definition begs the question about what differences are relevant for purposes of determining the necessity of equal treatment. Madagascar has argued that husbands and wives are different and that "prerogatives" given to the husband during marriage "impart unity and direction to the household". 74 States and cultures historically have pointed to the physical differences between men and women as legitimate bases for different treatment in law and policy. In Van der Mussele v. Belgium, 75 the applicant lawyer claimed discrimination in relation to the obligation to work without payment, a duty not imposed on other professions. The Court held that there are fundamental differences between the professions as to legal status and the nature of

UN Doc. A/2929 (1955), para. 34. UN Doc. E/CN.4/Sub.2/40 (1949), paras. 33-36. An earlier memorandum indicated that discrimination implies unequal and unfavorable treatment, either by the bestowal of favors or imposition of burdens, based on impermissible grounds. Definitions of the Expressions "Prevention of Discrimination" and "Protection of Minorities" (Memorandum by the Division ofHuman Rights) (E/CN .4/Sub.2/8) ( 1947), p. 2. 74 UN Doc. A/33/40, 33 GAOR Supp. 40 (1978), para. 290. 75 23 November 1983, European Court of Human Rights, Application No. 8919/80, Ser. A, No. 70, (1983) 6 European Human Rights Reports p. 163. 72

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the functions involved that made the situations disparate. Therefore, there was no discrimination involved. The views of society invariably impact the jurisprudence on discrimination. Hoffman v. Austria, a 5--4 decision of the European Court of Human Rights, considered whether denying custody to an applicant because of her religion (Jehovah's Witness) constituted impermissible discrimination on the basis of religion or was a legitimate distinction based on the independent test of the best interest of the children. 76 The Court held that there was both a distinction and a legitimate aim, but the measure was disproportionate and therefore an impermissible discrimination. A strong dissent argued for deferring to the state's determination of the interests of the children. The HRC has made clear that traditional notions of gender roles in employment and the home do not justify discrimination. In Broeks v. the Netherlands the HRC found that the denial of social security benefit to Mrs. Broeks, as a married woman, on an equal footing with a married man constituted discrimination under Article 26 of the ICCPR. The HRC observed that, under relevant Dutch law, a married woman in order to receive unemployment benefits, had to prove that she was a 'breadwinner', a condition that did not apply to married men. Such a differentiation placed married women at a disadvantage compared with married men. Views about illegitimacy and homosexuality have changed in many societies and have made distinctions on these bases less acceptable. Distinguishing those born in and out of wedlock for purposes of inheritance has been disapproved, 77 as has been distinction between legitimate and illegitimate children in respect of the rights of access of fathers. 78 Differential treatment based on sexual orientation has been found discriminatory in some circumstances,79 but not when the matter 76 23 June 1993, European Court of Human Rights, Application No. 12875/87, Ser. A, No. 255-C, (1994) 17 European Human Rights Reports p. 293. 77 Marckx v. Belgium, 13 June 1979, European Court of Human Rights, Application No. 6833/74, Ser. A, No. 31, (1979-1980) 2 European Human Rights Reports p. 330; Inze v. Austria, 28 October 1987, European Court of Human Rights, Application No. 8695/79, Ser. A, No. 126, (1988) 19 European Human Rights Reports p. 394. 78 Sahin v. Germany, 8 July 2003, European Court of Human Rights (Grand Chamber), Application No. 30943/96, (2003) 36 European Human Rights Reports p. 43; Sommerfeld v. Germany, 8 July 2003, European Court of Human Rights, Application No. 31871/96, (2004) 38 European Human Rights Reports p. 35. 79 In Toonen v. Australia, 30 March 1994, No. 488/1992, the Human Rights Committee found that Tasmanian laws criminalizing sexual relations between consenting males violated Toonen's right to privacy protected under the ICCPR. The Human Rights Committee noted (para. 8.7) that the ICCPR's reference to 'sex' in its Articles 2(1) and 26 included sexual orientation. In Young v. Australia, 6 August 2003, No. 941/2000, the Committee held that sexual orientation was covered by the 'other status' ground of Article

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concerned the adoption of a child and the state refused the adoption because of the applicant's "lifestyle". 80 It seems that the determination of what is a reasonable and relevant distinction cannot be decided without reference to other values in society which evolve over time. What is an appropriately 'fair' distinction is derived from current standards whether universal, regional, or national, is still to be resolved. In a recent study on gaps in international human rights law on the issue of discrimination, a study group appointed by the UN Human Rights Council identified certain groups as under-protected: religious groups, refugees, asylum-seekers, stateless persons, migrant workers, internally displaced persons, descent-based communities, indigenous peoples, minorities, and people under foreign occupation. 81 A look at several cases in the European system concerning the Roma indicates the need for further evaluation of what constitutes discrimination and what distinctions are permissible. A number of UK cases involved allegations by migrants ('travelers' and Roma) that planning and enforcement measures taken by local authorities in the UK against their occupation of land amounted to racial discrimination. 82 26 of the ICCPR, rather than as an aspect of sex. See also Joslin v. New Zealand, 17 July 2002, No. 902/1999. For European Court cases, see e.g., Land V v. Austria, 9 January 2003, Application Nos. 39392/98 and 39829/98; Karner v. Austria, 24 July 2003, Application No. 40016/98, (2004) 38 European Human Rights Reports p. 24; B.B. v. the United Kingdom, 10 October 2004, Application No. 53760/00; Smith and Grady v. the United Kingdom, 27 September 1999, Application Nos. 33985/96 and 33986/96; and Lustig-Prean and Beckett v. the United Kingdom, 27 September 1999, Application Nos. 31417/96 and 32377/96. The last-mentioned case represents the most overt consideration of changing societal attitudes. The ECtHR considered that it could not ignore widespread and consistently developing views or the legal changes in the domestic laws of contracting States in favor of the admission of homosexuals into the armed forces of those States. Accordingly, convincing and weighty reasons had not been offered by the UK Government to justify the discharge of the applicants, which was a direct consequence of their homosexuality. See also Beck, Copp and Bazeley v. the United Kingdom, 22 October 2002, Application Nos. 48535/99, 48536/99 and 48537/99, and Perkins and R. v. the United Kingdom, 22 October 2002, Application Nos. 43208/98 and 44875/98. 8 Frette v. France, 26 February 2002, European Court of Human Rights, Application No. 36515/97, (2004) 38 European Human Rights Reports p. 21. But see Salgueiro Da Silva Mouta v. Portugal, 21 December 1999, European Court of Human Rights, Application No. 33290/96. 81 See Complementary International Standards: Report on the study by the jive experts on the content and scope of substantive gaps in the existing international instruments to combat racism, racial discrimination, xenophobia and related intolerance (A/HRC/4/WG.3/6), 27 August 2007, para. 20. 82 See Beard v. the United Kingdom, 18 January 2001, European Court of Human Rights, Application No. 24882/94; Chapman v. the United Kingdom, 18 January 2001, European Court of Human Rights, Application No. 27238/95; Coster v. the United Kingdom, 18 January 2001, European Court of Human Rights, Application No. 24876/94; Jane Smith v. the United Kingdom, 18 January 2001, European Court of Human Rights,

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Despite the obvious negative impact of the planning laws, interference with the applicants' rights was held to be permissible as a proportionate measure to serve the legitimate aim of preservation of the environment. The Court gave little weight to allegations of systematic discrimination against members of the group. It does appear that the notion of discrimination has evolved from "perception of discrimination as, primarily, intentional unfavourable treatment of a section of the community . . . to a broader notion embracing unintentional or even traditional differentiation and more recently recognition that discrimination may be indirect, where identical treatment has disproportionately adverse effects on members of a particular group. " 8 At the same time, examination of whether or not a rule is reasonable is closely linked to and often dependent on the issue of who decides. As noted by one author, "[d]iscrimination is often the product of inequalities that are embedded deep within the structure of society and express themselves as social norms and common understandings". 84 Prevailing social views cannot always be the test of what is reasonable. In the end, who decides may be as significant as the test for what constitutes discrimination.

Application No. 25154/92; and Lee v. the United Kingdom, 18 January 2001, European Court of Human Rights, Application No. 25289/94. 83 Wildhaber, supra note 29, pp. 71-72. 84 Choudhury, supra note 52, p. 41.

[12] The CEDAW Committee and Violence against Women1 Christine Chinkin

1. Introduction: the Women's Convention 2009 sees the 30 th anniversary of the Convention on the Elimination of All Forms of Discrimination, popularly known as the Women's Convention, described by the UN Secretary-General as the «landmark treaty in the struggle for women's rights». Adoption of the Convention during the UN's Decade for Women 197585 was in recognition of the reality that despite the prohibition on discrimination on the basis of sex in the UN Charter (articles 1 (3), 55 and 56), the International Covenant on Civil and Political Rights (articles 2, 3 and 26) and the International Covenant on Economic, Social and Cultural Rights (articles 2 and 3) such discrimination continued to exist in all countries and specific legal prohibition needed to be directed towards those areas where it most impacted upon women's lives. The Convention was drafted by the UN Commission on the Status of Women and was adopted by the UN General Assembly in December 1979. States parties condemn discrimination against women and shall take appropriate measures to eliminate discrimination against women in public life, employment, education, access to healthcare services, access to credit, sport and other facilities. In addition - and exceptionally- it requires equality between women and men within the private sphere of the family, the location of significant discrimination against women. The Convention came into force in 1981 and today has 186. states parties, second only to the Convention on the Rights of the Child in terms of widespread adherence2• The Committee on

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the Elimination of Discrimination (CEDAW), established under the Convention, article 17 to monitor implementation, has become more activist in the adoption of General Comments or Recommendations on the interpretation and application of the Convention and engaging in constructive dialogue with states parties in the reporting sessions. However from soon after its adoption there was criticism of the Convention, flowing from the 1985 World Conference on Women in Nairobi and influenced by the 1970s second wave of feminism. A particular critique was that the equality-based model of the Convention meant that it focused on those areas of life where men sought guarantees of human rights based on their life experiences and that it worked best where women were most like men, in the public sphere, in the workplace, in educational establishments. Where it failed was where women's life experiences are not the same as those of men and where women suffer harms different from men. To put it another way, the human rights framework failed to account for the ways in which human rights abuses affect women differently because of their gender3. In particular the Convention did not address the issue of violence against women committed because they are women. Gender neutral provisions, such as those guaranteeing to everyone the right to life, provide women with the same legal safeguards as men. However the right to life was understood primarily as protecting against summary or arbitrary deprivation of life, or injury by the state4 • Where women suffer such deprivation of life (for example during detention or where they are disappeared) they are included within the human rights framework, but the reality is that women experience arbitrary deprivation of life most frequently from within the family, or from the community rather than at the hands of state agents. Without inclusion of these the Women's Convention was reduced in its value to women. In a ground-breaking article in 1990 Charlotte Bunch argued that sexism kills women before birth, during childhood and for the rest of women's lives 5• Before birth, sex selection and son pref4

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erence has led to what Amartya Sen has characterised as 100 million women are missing6; during childhood, the WHO has reported that in many countries girls are fed less, taken to doctors less frequently, die or are physically or mentally impaired by malnutrition at greater rates than boys; as adults, women are killed through battering, rape, dowry deaths, acid throwing, genital mutilation and sexual slavery. These deaths occur worldwide to women of all ages, class and racial groups, in homes, on the streets, in university campuses, in prisons, refugee camps. When combined with other forms of oppression such violence constitutes a deadly threat to women's right to life throughout the globe. The demand was for a reconceptualisation of human rights law to take account of violence against women.

2. General Recommendation No. 19 The CEDAW Committee was the first international institutional body to respond to these calls with its adoption of General Recommendation No. 19 in 1992. General Recommendation No. 19 located violence against women squarely within the framework of inequality between women and men. It asserted that violence against women constitutes a form of sex-based discrimination under the definition of discrimination in the Women's Convention, article 1. It is both a human rights violation of itself and causes violations of other rights, including those to life, to health, to equality in the workplace, to privacy. Further, sex-based discrimination especially with respect to guarantee of economic and social rights is a major cause of such violence. General Recommendation No. 19 is landmark instrument in a number of ways. First it provides a definition of gender-based violence. Since violence can and does occur to anyone at any time a definition is needed to distinguish between random violence and violence that is specifically directed at women because they are women. Accordingly, gender-based violence against women7 is de5

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fined as violence that is committed exclusively against women (for example forced pregnancy) or which affects women disproportionately. For example, men as well as women are raped, but women are raped in disproportionately greater numbers and with different consequences. These include the fear and reality of pregnancy; having to choose between bearing the baby of a rapist or seeking an abortion, legally if possible but otherwise an illegal abortion, criminalising the raped woman and possibly facing death through botched procedures; enduring social shame and ostracism; being pressured to marry the rapist in what is called "reparatory marriage"; and perhaps even being killed for shaming the family. Such violence does not just happen to occur against women, but is motivated by "factors concerned with gender" such as assertions of male power and control, enforcing assigned gender roles in society and punishing what is perceived as deviant female behaviour. For instance, in its inquiry into the hundreds of deaths of women in Ciudad Juarez, Mexico, that took place over a ten year period, the CEDAW Committee criticised a practice that «discriminates against women whose conduct may not conform to the accepted "moral code", but who have an equal right to life»8• In its concluding observations to the Netherlands the Committee expressed its concern that the state's policy with respect to domestic violence «is couched in gender neutral language, which undermines the notion that such violence is a form of discrimination against women». It thus rejected the view that forms of violence such as domestic violence that are committed in greater numbers against women, largely by men, and which have the potential to disrupt women's lives to a significantly greater extent than is the case for men, can be described in gender-neutral terms which conceal these realities. Second, General Recommendation No. 19 affirms that the Convention «applies to violence perpetrated by public authorities», for example by state agents such as the military, police and security forces, immigration officials, prison officers, even diplomatic staf£ However since the Convention, article 2 (e) requires states 6

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to eliminate discrimination against women by any person, organization or enterprise, states are also responsible for acts of violence committed by private persons. Accordingly states must act to «overcome all forms of gender-based violence, whether by public or private act» and must exercise due diligence to take positive measures to eliminate all forms of violence against women. This indicates that such violence is structural dnd constitutes a violation of human rights: it is not a private matter that can be dismissed as committed by a few deviant individuals. Third, General Recommendation No. 19 provides detailed recommendations for practical steps: legal, social, economic, rehabilitative, support and educative services for victims of family violence, rape and sexual assault, including refuges, specially trained health workers, rehabilitation and counselling services. It also recommends measures to overcome sexist attitudes and practices9 through education and public information programmes to help eliminate prejudices that hinder women's achievement of equality. Lawyers must work alongside experts in other disciplines such as sociology, social policy, social work, public health and economics, and legal initiatives must operate in conjunction with social, economic and political reforms. In General Recommendation No. 19 the CEDAW Committee recognised that human rights are not static but must move and develop as we enhance our understanding of how people are deprived of their rights, that unless this is done the human rights canon becomes meaningless for millions of people and that therefore we must look to understand human rights through a lens of gender. Such reconceptualisation was carried out through the assertion of positive state obligations, of state responsibility for the acts of non-state actors based on the obligation of due diligence. As the Recommendation is not a treaty there can be no reservations entered to it. Nevertheless, General Recommendation No. 19 is only a recommendation and without any follow-up activity it is likely that it would have had little impact. However the CEDAW Commit7

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tee linked it to the state reporting mechanism and, after the coming into force of the Option Protocol to the Women's Convention in 2000, to the inquiry and individual complaints mechanisms. Thus since the adoption of General Recommendation No. 19 the Committee has fleshed out its understanding of the types of violence that constitute a prohibition of women's human rights, where such violence occurs and how states must respond in order to comply with their duty of due diligence. The next section of the paper looks at some examples of the actions taken by the Committee to make states aware of their legal obligation to combat violence against women.

3. Implementation of General Recommendation No. 19 Through its concluding comments and observations the CEDAW Committee has identified forms and sites of violence. For example the Committee recognises family violence as «one of the most insidious forms of violence against women ... [that] is prevalent in all societies»10 • It regularly expresses concern about states' failure to adopt holistic or comprehensive measures to address domestic, intrafamilial (violence between partners who have not lived together) and intimate partner violence, including marital rape. Other forms of family violence include crimes committed in the name of honour, forced marriage, early or child marriage, dowry death, incest, infanticide and polygamy. A particular form of assault is corporal punishment or chastisement of a woman within the home, the acceptance of which lends social legitimacy to violence leading to silence about the occurrence of violence, a culture of impunity and thus under-reporting for fear of retaliation. Family violence has been the subject of three communications under the Optional Protocol that the Committee has decided on their merits. All three have demonstrated a high threshold of such violence involving threats, intimidation, beatings and battering, 8

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which in two cases resulted in killing. In Ms A. T. v. Hungary11 a woman complained that Hungary's failure to provide her with effective protection from her violent former common law husband violated the Convention. The Committee found that the ineffective responses by the authorities to many years of severe domestic violence, often taking place when the husband was drunk, constituted violations of the Convention. It noted that Hungary admitted that there were no remedies available capable of protecting Ms A.T. and that although legal reforms had been commenced they remained inadequate to benefit her. The Committee also went beyond the particular case and considered how traditional attitudes whereby women are regarded as subordinate to men contribute to violence against them. In this case the Committee recognised «aspects of the relationships between the sexes and attitudes towards women» in the country as a whole. Failure by the state to eradicate stereotypes that contribute to violence against women entailed violation of article 5 (1) of the Convention, which requires states to modify social and cultural patterns of conduct and which had been thought by many to have no substantive content. Two other cases involved the Austrian government. In both Ms $abide Goekce v. Austria12 and Ms Fatma Yildirim v. Austria13 repeated spousal violence resulted in death. The Committee noted that Austria had in place a comprehensive legal regime to address violence against women but considered that «in order for the individual woman victim of domestic violence to enjoy the practical realization of the principle of equality of men and women and of her human rights and fundamental freedoms, the political will that is expressed in the aforementioned comprehensive system of Austria must be supported by State actors, who adhere to the State party's due diligence obligations». The standard of due diligence is high. In the $abide case the authorities had prosecuted the perpetrators «to the full extent of the law» but that nevertheless this did not satisfy the duty of due diligence. Having a system in place to address the problem is not sufficient, it must be put into effect by people who understand the obligation of 9

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due diligence, as is illustrated by the facts in this case. The police did not respond to Ms Sahide's last desperate phone call, although her husband had shown himself to be dangerous and there was a long record of battering. They thus failed her because they did not take the required decisive steps when the facts showed that they knew, or should have known, of the extreme danger she was in. Further, women's right to be free from violence cannot be superseded by claims to other rights, including rights to property and privacy. Indeed the Committee has suggested that due diligence requires zero-tolerance, for example it has urged Iraq to «launch a zero-tolerance campaign on violence against women» with the objective of raising awareness of the problem and to make it «socially and morally unacceptable». Family violence is far from being the only form of violence against women that the Committee has examined. It has identified multiple other manifestations of and susceptibilities to violence, such as exploitation, including sex tourism, forced prostitution and organized marriages between women from developing countries and foreign nationals. These may or may not involve violence per se but create situations of vulnerability in which violence may occur. Prostitution in particular often - if not always - involves marginalisation and inadequate protection from violence. Vulnerability is enhanced by poverty, inimical economic structures, unemployment, political violence that conditions people to tolerate violence in general, war and conflict, and denial of economic and social rights to women. I have already referred to the Inquiry the Committee carried out under the Optional Protocol to the Convention, into the multiple murders, abductions and rapes of women that occurred over a period of more than 10 years in Ciudad Juarez, Mexico. General Recommendation No. 19, paragraph 21, had highlighted the special risk of and vulnerabilities to violence faced by girls from rural communities who migrate to seek employment- and a better way of life - in towns. The women who had been murdered and disappeared in Ciudad Juarez were precisely in such a posi10

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tion. They came to be in a situation of "high risk" of violence in the maquilas where they worked and lived in poverty, or extreme poverty. They were also exposed to other forms of community violence: organised crime, drug trafficking, illegal migration, trade in women, prostitution, exploitation of prostitution, and pornography14 • The Committee found that the repetition of serious acts of violence over a sustained period of time demonstrated systematic violence «founded in a culture of violence and discrimination, based upon women's alleged inferiority» that has developed specific characteristics «marked by hatred and misogyny» and has given rise to a culture of impunity15 • This social and cultural environment in which women are constructed as poor, vulnerable and insignificant facilitates and encourages terrible violations of human rights. The widespread kidnappings, disappearances, rapes, mutilations and murders have been termed "femicide" - the «gender-based murder of a woman»16 • Mexico, like Hungary, had failed to eradicate stereotypes that contribute to violence. Elsewhere the Committee has castigated «structural patriarchal attitudes and deep-rooted stereotypes», and the «macho image of mem> that undermine the effectiveness of measures addressing violence against women, including reforming legislation. The Committee considered that «focusing solely on the murders and disappearances as isolated cases in [Ciudad Juarez] would not appear to be the answer in terms of resolving the underlying sociocultural problem». Rather «the structural nature of gender violence demands social transformation in changing attitudes and behaviours». But in Ciudad Juarez officials had not explored the potential for such transformation. Official responses could have focused «on promoting social responsibility, change in social and cultural patterns of conduct of men and women and women's dignity», but instead they had tended to make «potential victims responsible for their own protection by maintaining traditional cultural stereotypes»17 • Placing the burden onto victims transfers the responsibility from the state and third parties and denies women's entitlement to security. The state could 11

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have responded differently to fulfil its obligation to achieve the required transformation by devising and implementing «specific policies on gender equality ... and a gender perspective integrated into all public policies». There are multiple avenues available for transformation which should be pursued with the cooperation of civil society, including education, public information programmes, awareness campaigns, media, popular music, theatre. Overall what must be sought is «a global and integrated response, a strategy aimed at transforming existing sociocultural patterns, especially with regard to eradicating the notion that gender violence is inevitable» 18 • Some forms of violence are rooted in custom, which may be associated with family relationships, such as dietary restrictions for pregnant women. Others are located within both the family and community. For example sati is based in the relationship between the woman and her dead husband but takes place within a community setting. Where attention has been drawn to very specific practices the Committee has, where appropriate, determined them to be contrary to the Convention. It has addressed witch hunting in India and deuki (dedicating girls to a god and goddess), jhuma (second sisters remaining unmarried and spending their lives in monasteries), kumari pratha (having a girl child as living goddess) and badi (ethnic practice of prostitution among young girls) in Nepal. The Committee has on a number of occasions voiced its concern at the number of women and girls who have undergone, or are at risk of undergoing, female genital mutilation, describing the practice as injurious to the physical and psychological wellbeing of girls and posing a threat to their lives and health. In General Recommendation No. 14, 1990, it recommended «appropiate and effective» steps for its eradication to be undertaken by health, education, religious, social and cultural bodies, including collection of data and providing support to women's organisations. Social institutions (including media and the arts) should cooperate to influence attitudes towards its eradication and assis12

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tance from UN bodies should be sought. The Committee has taken up the issue with specific states, noting the entrenched cultural underpinnings of the practice, commending those that have taken steps to eliminate the practice and regretting what appears to be ineffective legislation prohibiting the practice. It has indicated the desirability of prosecution of perpetrators so as to combat impunity. Such concerns are expressed both to countries where the practice is long-established and those where it is associated with certain sections of the population. The UN Committee on Economic, Social and Cultural Rights has developed a typology of states' obligations, requiring states to protect, respect and fulfil human rights. The CEDAW Committee has drawn upon this typology in clarifying what is expected of states in order to comply with the obligation of due diligence. As was made clear in the individual complaints against Hungary and Austria, states should adopt appropriate legislation and policies, study and monitor their operation to determine their effectiveness. But the obligation to respect women's human rights is not owed solely to its immediate society but also to the international community. Adequate and allocated funding is obviously essential for the proper operation of national strategies, functioning of legal processes, and provision of social and medical care, including crisis service and shelters. While women themselves must not be made responsible for ensuring freedom from violence, selfhelp efforts should be respected and may be material in determining whether the state has exercised due diligence. For example, the Committee noted that Fatma Yildrin had made «positive and determined efforts» to save her own life: she moved out of the apartment with her daughter, established ongoing contact with the police, sought an injunction and authorised her husband's prosecution. Despite all her efforts the state did not do sufficient to assist her and secure her safety. The obligation to protect - or to ensure respect - is the positive obligation upon states to exercise due diligence to protect women from violence committed by non-state actors. The obli13

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gation to protect includes combating a climate of impunity and silence whereby women can suffer extreme violence without accountability for perpetrators within national criminal justice systems. Such impunity feeds further spirals of violence. Combating impunity requires prompt, thorough, impartial and serious investigation of allegations of violence against women. The Mexico Inquiry illustrates how investigation may be inadequate. The Committee found that «no case of homicide linked to sexual violence was investigated in depth, the scene of the crime was not preserved, evidence was destroyed, accusations were ignored, defendants were framed, evidence was lost, pages were removed from files, and some of them have only a few pages, indicating that years had gone by without any investigation whatsoeveoP. Impunity may be engendered in other ways. For example certain crimes of violence against women might not be prosecuted, or else be met with defences, such as that a killing was committed to preserve family honour. The Committee told Brazil that such outcomes of violence «lead to serious violations of human rights and have negative consequences for society, strengthening discriminatory attitudes towards womem>. It has recommended states to adopt legislation removing such defences and asserted that where women are killed in so-called crimes of honour perpetrators should be prosecuted in the same way as for other homicides. The Committee has also been troubled about national laws which allow for a victim (or the victim's heir) to decide whether to exact retribution or payment of compensation or to pardon the accused. Informal forms of dispute resolution may lead to decisions that call for perpetration of violence against women and their continuation (even against the ruling of superior courts) also militates against accountability. More generally the Committee has been cautious about mediatory procedures that favour reconciliation in situations of violence, for example within the family, and has recommended that states scrutinise such processes closely. Following investigations the state must ensure that perpetrators are vigilantly prosecuted in a timely fashion. This may have a sym14

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bolic effect in conveying the message that «society condemns cases where the perpetrator in a domestic violence situation poses a dangerous threat to the victim>>2°. Prosecution may also be effectuated in the absence of a complaint by the victim. Where convicted, offenders must be sentenced appropriately. Rehabilitation or therapeutic programmes for offenders may also be considered. Inefficiency, complicity and negligence in public authorities charged with investigating allegations of violence should be punished. In the Mexico Inquiry the Committee recommended that the state investigates and punish «the negligence and complicity of public authorities in the disappearances and murders of women ... for their complicity in or tolerance of persecution, harassment or threats directed against victims' relatives, members of organizations representing them, and other persons involved in defending them»21 • Measures, such as restraining or other civil law orders should be introduced as well early warning and emergency search mechanisms for cases involving missing women and girls. Women must be able to access justice. Accordingly the state should ensure the elimination of «any obstacles that may be encountered by women victims of violence in obtaining precautionary measures against perpetrators of violence and to ensure that such measures remain easily accessible to them». Mexico was advised to make it easier for women to bring court action against offenders. Protective measures for witnesses, victims and victims' families need to be ensured. Legal aid should be available to enable women to access justice and legal remedies. For example the Committee indicated to the Netherlands its concern that free legal aid was not routinely provided to victims of domestic violence. In the Ms A. T. case Hungary was advised to provide «victims of domestic violence with safe and prompt access to justice, including free legal aid where necessary, in order to ensure them available, effective and sufficient remedies and rehabilitation». The Committee has also suggested (or commended when appropriate) the development of specialized bodies to address issues of violence against women, for example victim-friendly or family vi15

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olence courts, increasing the number of women in law enforcement roles, or specialized domestic violence and sex crimes units within law enforcement agencies. The obligation to protect women against violence includes the provision of adequate and effective remedies and compensation for victims of violence. Remedies should also be provided to the relatives of those who have suffered violence. For example the Committee recommended that Mexico «consider the need to facilitate adoption procedures for the grandmothers who have taken the children of the murdered and abducted women into their care and keeping so that they can receive the benefits to which they are entitled and have access to the social security benefits and social assistance which they would be entitled to receive through their mothers»22 • It also recommended that the State ensure the allocation of the necessary resources to provide medical and psychological treatment and economic assistance. The obligation to promote and fulfil its obligations to prevent violence against women, protect them from it and prosecute offenders requires states to be forward looking and to adopt short, medium and long term policies to combat it in all its forms and manifestations, looking towards the eventual fulfilment of the elimination of violence against women. Strategies and policies must vary according to the nature of violence, its incidence, and the social and economic context. Accordingly there must be multiple strategies involving a range of agencies, non-governmental organizations and other civil society institutions. The Committee has indicated some of the appropriate measures that must be considered to achieve transformative equality through the eradication of violence against women. Perhaps most important is the adoption of a national plan or strategy, and the institution of appropriate national machinery. A national plan should be comprehensive, concerted, long term, multidisciplinary, coordinated and include legal, educational, financial and social components. It must also be implemented, regularly monitored and evaluated. Sufficient resources must be allocated for its 16

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implementation and should not be allowed to become depleted. A close relationship with civil society involving dialogue and information sharing in the development and implementation of the national plan is recommended. The Committee welcomes the establishment of national machinery, such as a Tas!eforce for Action, for addressing violence against women, but is not satisfied with simply being informed of such initiatives. It questions states about the efficacy of any such institution, identifies weaknesses and recommends its strengthening. Among the many other measures that the Committee has suggested are: coordination between different branches of government and between law enforcement and judicial officers in addressing gender-based violence; consultation or collaboration between government and civil society in relation to policies to combat gender-based violence; regular gender training to, and sensitization of, all public officials, in particular judges, lawyers, law enforcement officials, parliamentarians, teachers and social workers; public awareness campaigns on all forms of violence against women and girls and its impact that address women and girls, men and boys, community and religious leaders; the Convention and General Recommendation No. 19 to be made known and adhered to by health professionals; rehabilitation programmes; programmes in non-violent conflict resolution for perpetrators; and ensuring the total autonomy and independence of the forensic departments and experts in their investigation of crimes of violence against women. The Committee is concerned that information and data on gender-based violence remain inadequate and has noted the scarcity of sex disaggregated statistical data on many occasions. It has encouraged the «compilation of statistics and research on the extent, causes and effects of violence, and on the effectiveness of measures to prevent and deal with violence». It has urged states to devise or improve structures for systematic data collection. The Committee has called upon states to study data on incidences of different types of violence disaggregated by sex, age, ethnicity, 17

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urban/ rural setting and the relationship of the perpetrator with the victim, as well as quantitative research to make findings in order to address violence against women. The Committee has been the pioneer on the international stage on work on violence against women, taking advantage of its opportunity to engage with states in constructive dialogue and using its procedures under the Optional Protocol to flesh out and clarify states' obligations. It has been instrumental in placing violence against women squarely in the field of human rights, rather than as an issue of social development, crime prevention, welfare, or health. By so doing it has contributed to a collective mind shift whereby the multiple local forms of violence committed against women are recognised as constituting a pattern of global behaviour. When able to do so, as in the Mexico Inquiry, the Committee has explored more fully the linkages between exploitative labour, women's migration for work, poverty, patriarchy, social constructions of women and gender relations, official apathy and complicity in creating an environment hostile to women's security and well-being. The Committee has perhaps not gone as far as some have sought. For example it has not designated even extreme forms of domestic violence resulting in death - as in the cases of ~ahide Goecke and Fatma Yildirim - as torture, but has rather focused on making sensible, feasible recommendations directed at the authorities for the prevention, protection and punishment of violence against women. It has not however been inhibited from making strong statements, including those that might be politically controversial. It has for example expressed regret and «deep concern about the exclusion of Afghan women from the high decision making level of the Conference and the absence of clear strategies to protect women's rights in the process of the discussions leading to negotiations with representatives of the Taliban»23. It also noted «with deep concern that the human rights of women and children in Gaza, [were] seriously violated during this military engagement>>24. It has placed women's right to be free from violence high in the hierarchy of rights asserting that it can18

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not be superseded by claims to other rights, including rights to property and privacy25, and has emphasised criminalization of forms of violence against women, alongside measures for protection, support, and rehabilitation.

4. Mainstreaming Violence against Women I have concentrated on the work of the CEDAW Committee in combating violence against women because this lecture is part of the series to commemorate the 30 year anniversary of CEDAW But other actors within the UN system have picked up the challenge and, in line with the UN policy of gender-mainstreaming26 , violence against women is now widely addressed throughout the UN system. For example the General Assembly has adopted the Declaration on the Elimination of Violence against Women 27 , commissioned the Secretary-General to prepare an in-depth study on the subject28 , has called upon «all United Nations bodies, entities, funds and programmes and the specialized agencies and invite[d] the Bretton Woods institutions to intensify their efforts at all levels to eliminate all forms of violence against women and girls and to better coordinate their work, inter alia, through the Task Force on Violence against Women of the Inter-Agency Network on Women and Gender Equality»29 • It has included the issue as a regular agenda item. The Secretary-General has launched a campaign "UNiTE to End Violence against Women" to run from 2008-2015. The Security Council has condemned «all sexual and other forms of violence committed against civilians in armed conflict, in particular women and childrem>3°. The Human Rights Council's resolution on «Accelerating efforts to eliminate all forms of violence against womem> seeks to ensure that due attention is given to the issue in the Council's work, including the universal periodic review and special procedures 31 • At the regional level in 1994 the Organisation of American States has adopted the only international treaty directly on violence against 19

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women 32 • The African Union's Protocol on the Rights of Women in Africa mainstreams violence throughout its provisions and the Council of Europe is currently working on drafting such a Convention. Today there is barely a global or regional international institution that has not incorporated issues of violence against women into their work. Especially influential has been the work of the Special Rapporteur on violence against women, mandated first by the Commission on Human Rights and subsequently by the Human Rights Council33 . The two Special Rapporteurs 34 to date have used their mandate to provide fuller accounts of the causes and consequences of the multiple forms and sites of violence, as well as exploring in greater detail the complexities of the relationship between violence and culture, violence against women in armed conflict and the transformative potential of the concept of due diligence. These are all issues that were flagged by the CEDAW Committee in General Recommendation No. 19. The Human Rights Committee and the Committee on Economic, Social and Cultural Rights have each adopted General Comments 35 on gender equality within the context of the two Covenants, which address forms of gender-based violence. In contrast to its narrow understanding of the right to life as expressed in its General recommendation No. 4, the Human Rights Committee now includes gender specific threats to life such as pregnancy and childbirth-related deaths of women, life-threatening clandestine abortions, female infanticide, the burning of widows and dowry killings and ways in which poverty and deprivation may pose a threat to women's lives. The Special Rapporteur on Torture study on gender and torture examines how to develop a gender-sensitive interpretation of torture 36 • It is apparent that since the adoption of General Recommendation No. 19 violence against women, including in situations of armed conflict has become widely recognised as violation of women's human rights. States have reported regularly to the Committee on the measures they have taken to combat it. A growing number of states have adopted national strategies, legislation and 20

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practices to reduce its incidence and to provide a framework for accountability. It is evident that much remains to be done to achieve substantive change on the ground but it seems that there is now sufficient state practice (as revealed through state's reports) and opinioJuris to support the claim that the obligation to prevent, prosecute and punish violence against women constitutes a rule of customary international law. The Committee has contributed significantly to this achievement. Notes 1 This lecture is adapted from a chapter on violence against women, forthcoming in a Commentary on the Convention on the Elimination of Discrimination against Women, to be published by OUP. 2 However the high rate of adherence to the Convention is undermined by the large number of reservations entered. The Committee on the Elimination of Discrimination against Women has expressed its concern in General recommendation No. 4, sixth session, 1987 and General recommendation No. 20, eleventh session, 1992. 3 "Gender" is understood as socially constructed while "sex" is biological. The Rome Statute of the International Criminal Court, 1998, article 7 (3) states that «that the term "gender" refers to the two sexes, male and female, within the context of society». 4 E.g., the Human Rights Committee, General Comment No. 6, 30 April 1982, on the right to life refers to deprivation of life by state authorities, arbitrary killing by state security forces and disappearances. It recommended that the right not be narrowly construed and considered «that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics». It did not identify any gender-specific threats to women's lives. 5 C. Bunch, Womens Rights as Human Rights: Towards a &vision of Human Rights, (1990) 12, Human Rights Quarterly, 486. 6 A. Sen, More than 100 Million Women are Missing, 20 New York &view of Books, 20 December 1990. 7 Men too may be subject to gender-based violence such as the targeted killing of military aged men. 8 Report on Mexico produced by the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention, and reply from the Government of Mexico, CEDAW, U.N. Doc. CEDAW /C/2005/OP.8/MEXICO, § 275. 9 See also the Women's Convention, article 5 (1). 10 General Recommendation No. 19, § 23. 11 lHs AT v. Hungary, Communication No. 2/2003, CEDAW 12 !jahide Goekce (deceased) v. Austria, Communication No. 5/2005, CEDAW

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Gender Issues and International Legal Standards Fatma Yiidirim (deceased) v. Austria, Communication No. 6/2005, CEDAW Mexico Inquiry,§ 289. Mexico Inquiry,§§ 66, 261. 16 Secretary-General, In-depth Study on All Forms of Violence against Women, UN Doc. A/61/122/ Add.1, 13, § 127 17 Mexico Inquiry,§ 57. 18 Mexico Inquiry,§ 287. 19 Mexico Inquiry,§ 88. 20 !fahide Goekce v Austria, § 12.3 (b); Fatma Yiidirim v Austria,§ 12.3 (b). 21 Mexico Inquiry, § 27 4. 22 Mexico Inquiry, § 292. 23 CEDAW Committee, 45th session,January, Geneva, 2010. Committee on the Elimination of All Forms of Discrimination against Women (CEDAW), Statement on the inclusion of the Afghan Women in the process of Peace building, Security and Reconstruction in Afghanistan. 24 UN Press Release, UN Committee says women's rights were seriously violated during Gaza conflict, 6 February, 2009. 25 i\!ls AT. v Hungary, § 9.4. 26 «Mainstreaming a gender perspective into all areas of societal development was established as a global strategy for promoting gender equality in the Platform for Action. Mainstreaming involves ensuring that attention to gender equality is a central part of all interventions .... The mainstreaming strategy does not exclude but rather complements the efforts and resources specifically targeted to women for promoting gender equality)). The mandate of the special rapporteur on violence against women against Women (1994-2009) -A Critical Review, 46, available website of the UN Office of the High Commissioner on Human Rights. 27 General Assembly Declaration on the Elimination of Violence against Women, 1993 (GA Res. 48/104). 28 Secretary-General, In-depth Study on Ail F-Imns of Violence against Women, UN Doc. A/61/122/ Add.1, 13. 29 GA Resolution 64/137, 11 February 2010. 30 SC Resolution 1820, 19 June 2008. SC Resolution 1325, 31 October 2000 on women, peace and security was ground-breaking in its commitment to women's participation in all aspects of peace processes. 31 Human Rights Council Resolution 11 /2, 17 June 2009. 32 OAS Convention on the Prevention, Punishment and Eradication of Violence against Women, 1994 (Convention of Belem do Para). 33 For a summary of the work of the special rapporteur see: The mandate of the special rapporteur on violence against women against Women (1994-2009), cit. 34 Radhika Coomaraswamy and Yakin Ertiirk. Rashida Manjoo was appointed as the third Special Rapporteur in 2009. 35 Human Rights Committee, General Comment 28, 29 March 2000, Equality of rights between men and women (article 3); Committee Economic, Social and Cultural Rights, General Comment No. 16 (2005), The equal right of men and women to the enjoyment of all economic, social, and cultural rights (Article 3), 11 August 2005. 36 M. Novak, Special Rapporteur on Torture, Report 15 January 2008, A/HRC/7 /3. 13

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[13] VIOLENCE AGAINST WOMEN AS SEX DISCRIMINATION: JUDGING THE JURISPRUDENCE OF THE UNITED NATIONS HUMAN RIGHTS TREATY BODIES

Alice Edwards* A. INTRODUCTION .................................................................................... 2 B. THE U.N. HUMAN RIGHTS TREATY BODIES .................................. 5 C. FEMINIST CRITIQUES OF INTERNATIONAL HUMAN RIGHTS LAW AND THE EQUALITY GUARANTEES ................. 8 D. EQUALITY AND NON-DISCRIMINATION ON THE BASIS OF SEX IN INTERNATIONAL LAW .................................................. 18 1. U.N. Charter and the Universal Declaration of Human Rights ......................................................................................... 18 2. International human rights instruments .................................... 19 3. International jurisprudence ..................................... .................. 24 (a) Formal versus substantive equality ..................................... 24 (b) Discrimination versus inequality ......................................... 30 (c) Public and private discrirnination ........................................ 32 (d) Culture, custom and structural inequality ........................... 34 (e) Multiple discrimination ....................................................... 38 4. Equality law and the U.N. treaty bodies: interim findings ....... .40 £.VIOLENCE AGAINST WOMEN AS SEX DISCRIMINATION ......... .43 1. Violence against women= sex discrimination ......................... .43 2. Assessing the VA W=SD formula .............................................. .46 (a) Benefits of the VAW=SD formula ..................................... .47 (b) Concerns relating to the VAW=SD formula ....................... 54 F.CONCLUSION ........................................................................................ 58

"Violence against women is a political act: its message is 'stay in • PhD, The Australian National University; University Lecturer in Human Rights and Refugee Law, Oxford University. This article received the Audre Rapoport Prize for Scholarship in the Human Rights of Women in 2008 and fortns part of the author's doctoral research. Its latest version has benefited from the advice and guidance of Hilary Charlesworth and Vanessa Munro. A sister piece on the incorporation of violence against women as a form of torture can be found at: Alice Edwards, The "Feminizing" of Torture under International Human Rights Law, 19 LEIDEN J. INT'L L. 349 (2006).

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your place or be afraid. '" 1

A.

INTRODUCTION

On the concluding day of the Fourth World Conference on Women in Beijing in 1995, the Secretary-General of the United Nations declared, "The movement for gender equality the world over has been one of the defining developments of our time." 2 He added that, despite progress made, "much, much more remains to be done." 3 On this path to equality, violence against women has been and continues to be a clear obstacle to women's enjoyment of other human rights, in particular their rights to be treated with equality and with dignity. Violence perpetrated against women is a global phenomenon that is a shared experience of women and girls 4 across historical periods, countries, and cultures. 5 During their lives, women and girls may be subjected to a range of life-threatening violence, including "honor" killings, acid violence, bride burning, domestic violence, or maternal death. 6 The conflicts in Rwanda and the former Yugoslavia in the 1990s brought renewed focus to genocide as a heinous crime committed during armed conflict, with belated acknowledgement that women were exposed to particular forms of genocide, including rape and sexual violence. 7 Such forms of violence against women have continued into other conflicts. 8 Female genital mutilation remains a problem in many societies and has

I. Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision ofHuman Rights, 12 HUM. RTS. Q. 486, 490-91 (1990). 2. The Secretary-General, Report of the Fourth World Conference on Women, at 31, U.N. Doc. A/CONF.177/20/Add. l (Oct. 27, 1995). 3. Id. 4. Throughout this article, reference to women includes girls or girl-children. A child is defined as a "human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier." United Nations Convention on the Rights of the Child art. 1, Nov. 20, 1989, 1577 U.N.T.S. 3. 5. U.N. DEP'T OF ECON. & Soc. AFF., THE WORLD'S WOMEN 2005: PROGRESS IN STATISTICS, at 69, U.N. Doc. ST/ESA/STAT/SER.K/17, U.N. Sales No. E.05.XVll.7 (2006). 6. UNITED NATIONS CHILDREN'S FUND, THE STATE OF THE WORLD'S CHILDREN 2007: WOMEN AND CHILDREN-THE DOUBLE DIVIDEND OF GENDER EQUALITY, Sales No. E.07.XX. l (2006). See also Plan lntemational, BECAUSE ] AM A GIRL: THE STATE OF THE WORLD'S GIRLS 2007 (2007). 7. See, e.g., Sherrie L. Russell-Brown, Rape as an Act of Genocide, 21 BERKELEY J. lNT'L L. 350,355 (2003); Rhonda Copelan, Gendered War Crimes: Reconceptualizing Rape in Time of War, in WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES 197, 205-06 (Julie Peters & Andrea Wolper eds., Routledge 1995). 8. See Darfur Sudan (Prosecutor v. Ahmad Muhammad Harun & Al Abd-Al-Rahman), I.C.C.-02/05-01/07, 2, 6-15 (Apr. 27, 2007) (charging defendants with rape as crimes against humanity and war crimes in relation to the conflict in Darfur, Sudan).

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been declared a human rights violation by the World Health Organization. 9 According to the United Nations Population Fund, up to 60 million girls and women are missing from Asian populations due to sex-selective abortions and infanticide. 10 Amartya Sen has suggested that the figure is closer to over 100 million, caused in part by low literacy and lack of education and economic opportunities for women. 11 Around 800 thousand persons, mainly women and children, are estimated to be trafficked each year, largely for sexual exploitation and slavery. 12 According to the U.N., violence is perpetrated against women and girls in all societies, both in conflict and in peacetime, and it "cuts across lines of income, class and culture." 13 Despite extensive evidence and statements regarding the scale and serious effects of such violence, the U.N. and its system of international law have been slow to recognize the issue as an official concern. In particular, there is no single treaty provision explicitly prohibiting violence against women within any of the eight "core" human rights treaties, 14 or a binding international treaty specifically on the issue. 15 Because of this 9. World Health Organization, World Health Organization's Fact Sheet No. 241 (June 2000), available at http://www.who.int/mediacentre/factsheets/fs24l/en/ (last visited Oct. 10, 2008). See also The Special Rapporteur, Integration of the Human Rights of Women and the Gender Perspective, at 9-10, U.N. Doc. E/CN.4/2002/83 (Jan. 31, 2002). 10. UNITED NATIONS POPULATION FUND, STATE OF THE WORLD'S POPULATION 2004, at 5, U.N. Doc. E/31,000/2004, U.N. Sales No. E.04.III.H.l (2005). II. Amartya Sen, More than JOO million women are missing, NEW YORK REVIEW OF BOOKS, Dec. 20, 1990, at 61. 12. Accurately determining the number of victims of trafficking is difficult. According to the U.S. Depanment of State, between 600 thousand and 800 thousand individuals are trafficked annually. U.S. DEP'T OF STATE, TRAFFICKING IN PERSONS REPORT 6 (2005), available at http://www.state.gov/documents/organization/47255.pdf. 13. THE WORLD'S WOMEN 2005: PROGRESS IN STATISTICS, supra note 5, at 69. 14. The "core" human rights treaties are the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 (Mar. 23, 1976) [hereinafter ICCPR]; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3 (Jan. 3, 1976) [hereinafter ICESCR]; International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 U.N.T.S. 195 (Jan. 4, 1969) [hereinafter ICERD]; Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13 (Sept. 3, 1981) [hereinafter CEDA W]; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (Jun. 26, 1987) [hereinafter UNCAT]; Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 (Sept. 2, 1990) [hereinafter CRC]; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158, Annex, U.N. GAOR, 45th Sess., Supp. No. 49A at 262, U.N. Doc. N45/49 (Jul. I, 2003) [hereinafter IMWC]; and Convention on the Rights of Persons with Disabilities 2006, G.A. Res. 61/106, U.N. Doc. N61!49 (May 3, 2008) [hereinafter ICRPD]. Many of these treaties do, however, deal with particular forms ofviolencc, which may be perpetrated against women or girls. 15. There are two regional instruments that deal with violence against women: the Inter-American Convention on the Prevention, Punishment and Eradication of Violence

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omission, the U.N. human rights treaty bodies, also known as committees, with responsibility for overseeing the implementation of treaty obligations by states parties have sought to incorporate violence against women as an issue of concern by applying gendered interpretations to existing provisions. 16 One way they have sought to achieve this is by characterizing violence against women as a fonn of sex discrimination. For the purposes of this article, violence against women is understood to encompass, but is not limited to, any act or threat of physical, sexual, or psychological violence perpetrated against women. 17 In this article, I explore how the concepts of equality and nondiscrimination on the basis of sex have been interpreted generally as well as how they have been applied to various forms of violence against women by the U.N. human rights treaty bodies. How are sex discrimination and inequality understood under international law? What has this meant for the inclusion of women and their lives within these prohibitions? What progress has been made, if any, since the adoption of the U.N. Charter? I find that although there has been progress in terms of adjustments of meaning from ideas of formal to substantive equality, there is still uncertainty as to the meaning of the terms and their application in particular settings. The implementation record of the treaty bodies of these principles to various cases is mixed. Many of the feminist critiques of equality outlined in this article remain valid, particularly as the interpretations and applications of these concepts/principles are still tethered to a sameness/difference ideology. The second half of the article turns to the specific issue of the application of the principles of equality and non-discrimination on the basis of sex to violence against women. This approach, developed by the Committee on the Elimination of All Forms of Discrimination against Women (the Women's Committee) and followed to a greater or lesser extent by the other treaty bodies, treats violence against women as a form of sex discrimination. As a pragmatic solution to the absence of an explicit Against Women, June 9, 1994, 33 I.L.M. 1534 (Mar. 5, 1995) and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, Adopted by the 2nd Ordinary Session of the Assembly of the Union, A.U. Doc. CAB/LEG/66.6 (Sept. 13, 2000); reprinted in l AFR. HUM. RTS. L.J. 40 (Nov. 25, 2005). 16. See, e.g., Alice Edwards, The "Feminizing" of Torture under International Human Rights Law, 19(2) LEIDEN J. INT'L L. 349 (2006). 17. This definition is taken from Art. 2, Declaration on the Elimination of Violence against Women 1993, although it is wider than that definition, G.A. Res. 48/104, U.N. Doc. A/RES/48/104 (Feb. 23, 1994). For background on the U.N. and violence against women, see Jutta Joachim, Shaping the Human Rights Agenda: The Case for Violence against Women, in GENDER POLITICS IN GLOBAL GOVERNANCE 142 (Mary K. Meyer & Elisabeth PrUgl eds., Rowman & Littlefield Publishers 1999) and SALLY ENGLE MERRY, HUMAN RIGHTS & GENDER VIOLENCE: TRANSLATING INTERNATIONAL LAW INTO LOCAL JUSTICE (Univ. of Chicago Press 2006).

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prohibition on violence against women, it is clear that the equality guarantees have been used to plug an important gap in the law. At the same time, however, I find the approach to be inherently problematic. First, it equates violence against women to sex discrimination and is therefore subject to understandings of the latter term, which have proven to be complex and unsettled (however they are defined). Second, this approach covers only gender-related forms of violence rather than all forms of violence against women and creates, therefore, a two-tiered system of protection. Third, it reinforces an international legal system that disadvantages women by subjecting them to additional, different, or unequal criteria. By requiring women to characterize the violence they suffer as sex discrimination rather than as violence per se, they are treated unequally under the law. In addition, I find that the rhetoric of equality to be weaker than the language of violence. But first, I provide a brief overview of the treaty bodies. B.

THE U.N. HUMAN RIGHTS TREATY BODIES

International supervision of the implementation by states parties of most of their international human rights treaty obligations is carried out by independent committees or treaty bodies. As of September 2008, the U.N. human rights treaty body system consists of eight international treaty bodies that oversee the implementation of eight human rights treaties. 18 They are: • the Human Rights Committee (HRC), monitoring the International Covenant on Civil and Political Rights 1966 (ICCPR); 19 • the Committee on Economic, Social and Cultural Rights (CERD), monitoring the International Covenant on Economic, Social and Cultural Rights 1966 (ICERD); 20 • the Committee on the Elimination of Racial Discrimination (CERD), monitoring the International Convention on the Elimination ofAll Forms of Racial Discrimination 1965 (ICERD); 21 18. Office of the High Commissioner for Human Rights (OHCHR), The United Nations Human Rights Treaty System: An Introduction to the Core Human Rights Treaties and the Treaty Bodies, Fact Sheet No. 30, undated, available at http://www.unhchr.org. There are a range of other human rights treaties, such as the Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 (in force Jan. 12, 1951) [hereinafter Genocide Convention] and the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, Dec. 2, 1949, 96 U.N.T.S. 273 (in force July 25, 1951). However, these treaties do not establish monitoring mechanisms in the same way as those listed in the text. 19. ICCPR, supra note 14. 20. ICERD, supra note 14. 21. ICERD, supra note 14.

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• the Committee on the Elimination of Discrimination against Women (the Women's Committee), monitoring the Convention on the Elimination ofAll Forms ofDiscrimination against Women 1979 (CEDAW); 22 • the Committee against Torture (CAT), monitoring the U.N Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment 1984 (UNCAT); 23 • the Committee on the Rights of the Child (the Children's Committee), monitoring the Convention on the Rights of the Child 1989 (CRC);24 • the Committee on the Rights of Migrant Workers (Migrant Workers' Committee), monitoring the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 1990 (IMWC); 25 and • the Committee on the Rights of Persons with Disabilities (CRPD), monitoring the Convention on the Rights of Persons with Disabilities 2006 (ICRPD). 26 As the CRPD has not yet commenced work at the time of writing, it is not considered in full in this article. The treaty bodies are established pursuant to the treaty they monitor or by other U.N. resolutions. 27 The committees sit on a part-time basis and meet two to three times per year for periods of two to three weeks per session, with some committees also meeting in pre-sessional working groups. 28 Their combined meeting time is fifty seven weeks each year. 29 22. CEDA W, supra note 14. 23. UNCAT, supra note 14. 24. CRC, supra note 14. 25. IMWC, supra note 14. 26. ICRPD, supra note 14. 27. Human Rights Committee [hereinafter HRC] as established by ICCPR, supra note 14, pt. IV; Committee on Economic, Social and Cultural Rights [hereinafter CESCR] as established by Economic and Social Council, Res. 1985/17, U.N. Doc. E/1985/85 (May 28, 1985); Committee on the Elimination of Racial Discrimination [hereinafter CERD] as established by ICERD, supra note 14, pt. II; Women's Committee as established by CEDAW, supra note 14, pt. V; Committee Against Torture [hereinafter CAT] as established by UNCAT, supra note 14, pt. II; Children's Committee as established by CRC, supra note 14, pt. II; Migrant Workers' Committee as established by IMWC, supra note 14, pt. VII; Committee on the Rights of Persons with Disabilities [hereinafter CRPD] as established by ICRPD, supra note 14, art. 34. 28. HRC normally meets for three sessions per year of three weeks' duration, with Working Group on Communications meeting prior to that [ICCPR, art. 37 & Rules of Procedure of HRC, U.N. Doc. CCPR/C/3/Rev.8, Sept. 22, 2005, Rule 2]; CERD has two sessions per year for three weeks and one week pre-sessional working group [ICERD, art. IO & Rules of Procedure of CERD, U.N. Doc. CERD/C/35/Rev.3, Jan. I, 1989, Rule l]; Women's Committee was originally envisaged to meet "not more than two weeks annually," see CEDA W, supra note 14, art. 20, but now meets for three sessions per year of three weeks; CAT meets for two sessions per year, one of two weeks, one of three weeks, plus one week pre-sessional working group [UNCAT, art. 18(4) & Rules of Procedure of CAT, U.N. Doc. CAT/C/3/Rev.4, Aug. 9, 2002, Rule 2]; the Children's Committee

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A further committee, the Committee on Enforced Disappearances, overseeing the International Convention for the Protection of All Persons from Enforced Disappearances 2006 (ICED), 30 is due to commence work as soon as twenty ratifications have been received to the treaty itself. 31 In addition, the Sub-Committee on the Prevention of Torture (SPT) was established in 2006 under the Optional Protocol to the Convention against Torture (OPCA T) 32 to carry out inspection visits to places of detention. The functions of the treaty bodies are four-fold. First, the treaty bodies receive and examine reports submitted by states parties on the implementation of their treaty obligations on a periodic basis. 33 Second, the treaty bodies have developed the practice of issuing authoritative statements or guidance to states parties on the meaning of substantive rights, the obligations of states parties, and other common issues (known as either General Comments or General Recommendations). 34 Third, some of the treaty bodies have jurisdiction to receive and consider inter-state communications relating to a dispute between two states parties 35 although "normally meet[s] annually," see CRC, supra note 14, art. 43(10), but the Committee actually meets annually for three sessions of three weeks plus one week of pre-sessional working group. ln 2006, the Children's Committee sat in two separate chambers of nine members in order to clear the backlog as an exceptional and temporary measure [www.ohchr.org]. Migrant Workers' Committees should "normally meet annually," see IMWC, supra note 14, art. 75(3), and at present, the Committee meets annually. 29. Office of the High Commissioner for Human Rights [hereinafter OHCHR], Report of the Fourth Inter-Committee Meeting of Human Rights Treaty Bodies, 'ii 59, U.N. Doc. A/60/100 (Aug. 10, 2005). 30. International Convention for the Protection of All Persons from Enforced Disappearance, G.A. Res. 61/177, pt. II, U.N. Doc. A/RES/61/177 (not yet in force Sept. 2008) [hereinafter ICED]. 31. Id. art. 39(2). 32. Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 57/199, U.N. Doc. A/RES/57/199 (Dec. 18, 2002). 33. ICCPR, supra note 14, art. 40; ICESCR, supra note 14, art. 17; ICERD, supra note 14, art. 9; CEDAW, supra note 14, art. 18; UNCAT, supra note 14, art. 19; CRC, supra note 14, art. 44; IMWC, supra note 14, art. 73. 34. These are not explicitly provided for in the treaties themselves but developed from practice drawing on vague language in some of the treaties relating to state party reporting. See, e.g., lCCPR, supra note 14, art. 40(4) (The Committee "shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties."). 35. See ICCPR, supra note 14, art. 41 (HRC----on an optional basis-subject to submitting state party's declaration accepting the jurisdiction of the Committee); ICERD, supra note 14, art. ll, (CERD--automatic jurisdiction upon ratification of the ICERD); UNCAT, supra note 14, art. 21 (CAT-on an optional basis-subject to submitting state party's declaration accepting jurisdiction of the Committee); IMWC, supra note 14, art. 76 (Migrant Workers' Committee-on an optional basis-subject to submitting state party's declaration accepting jurisdiction of the Committee, but it has yet to enter into force). On Dec. 10, 2008, the General Assembly adopted the Optional Protocol to the ICESCR in which interstate and individual communications are catered for. See GA res. A/RES/63/117

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no such communications have ever been lodged. Fourth, half of the committees receive and consider petitions by individuals alleging violation of one or more of their human rights by a state party (known as "individual communications"). 36 In addition, some of the committees have mechanisms to conduct fact-finding inquiries 37 or other early warning procedures. 38 The views expressed by the treaty bodies in carrying out of these functions make up what is loosely described as the "jurisprudence" of the treaty bodies, which is the focus of this article. C.

FEMINIST CRITIQUES OF INTERNATIONAL HUMAN RIGHTS LAW AND THE EQUALITY GUARANTEES

Animating feminist theories of the international legal system is the exclusion of women from mainstream human rights norms, processes, and institutions. In this article, I adopt Janet Halley's three-tiered definition of feminism. First, to qualify as a feminist argument, a distinction must be made between men/male/masculine (which she refers to as "m") and women/female/feminine (which she refers to as "/'). Second, feminism must posit some kind of subordination between m and fin which f is the disadvantaged or subordinated element. Third, in opposing this (Dec. 10, 2008). 36. HRC, see Optional Protocol to the ICCPR, Dec. 16, 1966, 999 U.N.T.S. 177 (Mar. 23, 1976); CERD, see ICERD, supra note 14, art. 14; Women's Committee, see Optional Protocol to the CEDAW, Oct. 6, 1999, 2131 U.N. T.S. 83 (Dec. 22, 2000) [hereinafter OPCEDAW]; CAT, see UNCAT supra note 14, art. 22; Migrant Workers' Committee, see IMWC, supra note 14, art. 77 (note that the individual communications mechanism has yet to receive the appropriate number of ratifications to enter into force); Optional Protocol to the ICRPD, G.A. Res. 61/106, U.N. Doc. A/61/49 (May 3, 2008). The Optional Protocol to the ICESCR includes an individual communications procedure, id. 3 7. The O PC EDA W provides an optional procedure to allow the Women's Committee to respond when it receives reliable information indicating grave or systematic violations of human rights. Responses may include country visits. OPCEDAW, supra note 36, arts. 810. The CAT operates a confidential inquiry and an urgent reporting procedure when it receives reliable information about well-founded indications of the systematic practice of torture, which may include visits to the territory in cooperation with the state party. UNCAT, supra note 14, art. 20. In addition, the OPCAT establishes an international inspection body with the capacity to make unannounced visits to places of detention in order to reduce the occurrence of torture or cruel, inhuman, or degrading treatment or punishment. See Malcolm D. Evans, Getting to Grips with Torture, 51 INT'L COMP. L. Q. 365 (2002); Malcolm D. Evans & Claudine Haenni-Dale, Preventing Torture? The Development of the Optional Protocol to the U.N. Convention Against Torture, 4 HUM. RTS. L. REV. 19 (2004); MANFRED NOWAK & ELIZABETH McARTHUR, THE UNITED NATIONS CONVENTION AGAINST TORTURE: A COMMENTARY 879-1191 (Oxford Univ. Press 2008). 38. The CERD has developed an ad hoc early warning or urgent procedure in order to prevent the escalation of situations into conflict or to prevent resumption of hostilities, based on a working paper. CERD, Report of the Committee on the Elimination of Racial Discrimination, pt. II(l5-19), Annex 3, U.N. Doc. A/48/18 (Sept. 15, 1993).

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subordination and in attempting to eradicate it, "feminism carries a brief for I also agree with Nancy Levit and Robert Verchick's identification of two shared features of all feminist theories: the first is an observation-the world has been shaped by men, particularly white men, who, for this reason, possess larger shares of power and privilege; the second is an aspiration-all feminists believe that women and men should have political, social, and economic equality. But, while feminists agree on the goal of equality, they disagree about its meaning and how to achieve it. 40 Broadly speaking, feminist scholars argue that international human rights law is conceived as a set of "male" rights. 41 By "male" rights, feminists mean that rights are "defined by the criterion of what men fear will happen to them;" 42 that the content of the rules of international law privilege men and fail to acknowledge, or otherwise marginalize or silence, women's interests; 43 and that the very choice and categorization of subject matter deemed appropriate for international regulation reflects male priorities. 44 In this way, the system of international law is said to be a "thoroughly gendered system." 45 The omission of an explicit prohibition on violence against women is an example in point. Moreover, feminist theory criticizes international human rights law for adopting the "male" sex as the standard against which all individuals are judged. Women become the deviation from this standard. 46 In short, women are an exception to the

/ " 39

39. JANET HALLEY, SPLIT DECISIONS: How AND WHY ro TAKE A BREAK FROM FEMINISM 17-18 (Princeton Univ. Press 2006). 40. NANCY LEVIT & ROBERT R.M. VERCHICK, FEM!NlST LEGAL THEORY: A PRIMER 1516 (Richard Delgado & Jean Stefancic eds., New York Univ. Press 2006). 41. See, e.g., Riane Eisler, Human Rights: Toward an Integrated Theory for Action, 9 HUM. RTs. Q. 287 (1987); Bunch, supra note l, at 486; Hilary Charlesworth, Christine Chinkin & Shelley Wright, Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); Rebecca J. Cook, Women's International Human Rights Law: The Way Forward, 15 HUM. RTS. Q. 230 (1993); Hilary Charlesworth & Christine Chinkin, The Gender ofJus Cogens, 15 HUM. RTS. Q. 63 (1993); Hilary Charlesworth, Human Rights as Men's Rights, in WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES, supra note 7, at 103; Gayle Binion, Human Rights: A Feminist Perspective, 17 HUM. RTS. Q. 509, 514 (l 995). 42. Charlesworth, Chinkin & Wright, supra note 41, at 628-30; Charlesworth & Chinkin, supra note 41, at 63; Charlotte Bunch, Transforming Human Rights from a Feminist Perspective, in WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES, supra note 7, at 11, 13. 43. Charlesworth, Chinkin & Wright, supra note 41, at 614-15. 44. HILARY CHARLESWORTH & CHRISTINE CHINKIN, THE BOUNDARIES OF INTERNATIONAL LAW: A FEM!NlST ANALYSIS 18 (Manchester Univ. Press 2000). 45. Id. 46. See Christine A. Littleton, Equality and Feminist Legal Theory, 48 U. PITT. L. REV. 1043, 1050-52 (1987); Ngaire Naffine, Sexing the Subject (of Law), in PUBLIC AND PRIVATE: FEMINIST LEGAL DEBATES 18, 24-25 (Margaret Thornton ed., Oxford Univ. Press 1995); SANDRA LIPSITZ BEM, THE LENSES OF GENDER 2 (Yale Univ. Press 1993); Carol C. Gould, The Woman Question: Philosophy of Liberation and the Liberation of Philosophy, in

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rule. Meanwhile, governments accept and promote this perspective as the rule oflaw. 47 A subset of the above critique is the distinction drawn between the public and private spheres of everyday life for the purposes of international legal rules. As international law privileges the public sphere of life over the private and thereby refuses to recognize the "specificity of the female life in the private sphere," 48 it ignores, marginalizes, or silences women's concerns. This so-called public/private dichotomy is said to be the source of women's exclusion from international law, in particular because it is manifest in the theory of state responsibility for human rights abuses. 49 The boundaries between the "public" and the "private" and the allocation of men and women thereto are "deeply political and inherently constructed." 50 On a practical level, the effect of distinguishing between the public and the private has "rendered invisible" or less important, the many violations that women suffer in private. 51 The exclusion of violence against women from the human rights agenda arises from a failure to see the oppression of women as political. 52 In this way, it leaves the private, or WOMEN AND PHILOSOPHY: TOWARD A THEORY OF LIBERATION 5, 5-6 (Carol C. Gould & Marx W. Wartofsky eds., Putnam Publishing Group 1976); Berta E. Hermindez-Truyol, Women's Rights as Human Rights-Rules, Realities and the Role of Culture: A Formula for Reform, 21 BROOK. J. INT'L L. 605, 651 (1996); Kathleen Mahoney, Theoretical Perspectives on Women's Human Rights and Strategies for Their Implementation, 12 BROOK. J. INT'L L. 799 (1996); Ursula A. O'Hare, Realizing Human Rights for Women, 21 HUM. RTS. Q. 364, 365-66 (1999); Catharine A. MacK.innon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994). 47. Hernandez-Truyol, supra note 46, at 651. 48. Naffine, supra note 46, at 20, 32. 49. O'Hare, supra note 46, at 368. See also Hilary Charlesworth, Alienating Oscar? Feminist Analysis of International Law, in RECONCEIVING REALITY: WOMEN AND INTERNATIONAL LAW I (Dorinda G. Dallmeyer ed., The Am. Soc'y of Int'! Law 1993); Katherine M. Culliton, Finding a Mechanism to Enforce Women's Rights to State Protection from Domestic Violence in the Americas, 34 HARV. INT'L L.J. 507 (1993); Anthony P. Ewing, Establishing State Responsibility for Private Acts of Violence against Women under the American Convention on Human Rights, 26 COLUM. HUM. RTS. L. REV. 751 (1995); Celina Romany, State Responsibility Goes Private: A Feminist Critique of the Public/Private Distinction in International Human Rights Law, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 85 (R.J. Cook ed., Univ. Pennsylvania Press 1994); Christine Chinkin, A Critique of the Public/Private Dimension, 10(2) EUR. J. INr'L L. 387 (1999). 50. VANESSA MUNRO, LAW AND POLITICS AT THE PERIMETER: RE-EVALUATING KEY FEMINIST DEBATES IN FEMINIST THEORY 13 (Hart Publishing 2007). 51. Anne Gallagher, Ending the Marginalization: Strategies for Incorporating Women into the United Nations Human Rights System, 19 HUM. RTS. Q. 283, 290 (1997); Binion, supra note 41, at 515-16; Romany, supra note 49, at 85; Celina Romany, Women as Aliens: A Feminist Critique of the Public/Private Distinction in International Human Rights Law, 6 HARV. HUM. RTS. J. 87, 87 (1993). 52. Bunch, supra note 42, at 14.

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family, realm where the majority of women spend the bulk of their lives, unregulated, unprotected, and susceptible to abuse. 53 Many violent acts committed against women at the hands of men occur prior to or without direct state involvement. 54 At the domestic level, for example, women have trouble convincing law enforcement officials that violent acts within the home are criminal. 55 At the international level, this is translated into difficulties women face in convincing the international community that domestic violence is of international, in addition to national, concern. While there is general agreement among feminist scholars that the international human rights legal system could do more to address the particular concerns of women, there is far less agreement as to why women are excluded, how the system may be reformed to be more inclusive, and whether it is even capable of transformation. Equality and non-discrimination provisions, although considered central tenets of human rights law, have been especially criticized by feminist scholars. The principle of equality has been recognized as one of the fundamental principles of liberal democracies and government by the rule of law and has been absorbed into many legal systems, 56 including international law. "[E]quality before the law is in a substantial sense the most fundamental of the rights of man [sic]. It occupies the first place in most written constitutions. It is the starting point of all other liberties." 57 "[I]t is philosophically related to the concepts of freedom and justice." 58 But some have considered "equality" as so vague and so wide a term that it is almost meaningless. 59 So what do these terms mean generally? In spite of the centrality of the principles of equality and nondiscrimination in law, they are deeply contested concepts. As ideals of justice they are well accepted principles, 60 but their content is less obvious. 53. Bunch, supra note I, at 486; Hilary Charlesworth, The Mid-Life Crisis of the Universal Declaration of Human Rights, 55 WASH. & LEE L. REV. 781 (1998). 54. Catharine A. MacKinnon, On Torture: A Feminist Perspective on Human Rights, in HUMAN RIGHTS IN THE TWENTY-FIRST CENTURY: A GLOBAL CHALLENGE 21, 25 (Martinus Nijhoff Publishers 1993). 55. CRIMES AGAINST WOMEN: PROCEEDINGS OF THE INTERNATIONAL TRIBUNAL 58-67, 110-75 (Diana E.H. Russell & Nicole Van de Ven eds., Les Femmes 1984). 56. Daniel Moeckli reports that 111 states guarantee some form of equality in written constitutions. DANIEL MOECKLI, HUMAN RIGHTS AND NON-DISCRIMINATION IN THE "WAR ON TERROR" 57 (Oxford Univ. Press 2008). 57. HERSCH LAUTERPACHT, AN INTERNATIONAL BILL OF THE RIGHTS OF MAN 115 (Columbia Univ. Press 1945). 58. South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), 1962 I.CJ. 319; 1966 I.C.J. 4,303 (May 20) (preliminary objections). 59. J.F. Stephen, Liberty, Equality, Fraternity (Cambridge University Press 1873), 201, as referred to in WARWJCK MCKEAN, EQUALITY ANO DISCRIMINATION UNDER INTERNATIONAL LAW 2 (Oxford Univ. Press 1983). 60. This was not always the case and remains a challenge in some countries. Early formulations of equality and non-discrimination were directed at equality between men of

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At one end of the spectrum of views on equality is the liberal democratic tradition of equality as the comparison of similar situations. 61 This is also referred to as the Aristotelian view of equality as "treating like alike," 62 meaning that persons in similar positions should not be treated unequally. 63 The problem with this view is that it does not address what differences are relevant to determining whether individuals are equal or unequal. 64 In terms of equality between men and women, it is problematic on two levels. First, it assumes that the point of comparison is male; and second, it cannot be applied where a comparable male is missing. 65 This view of equality has largely been translated into national modem laws of equality of opportunity (or formal equality). That is, any distinction, exclusion, or restriction must not be arbitrary, but should be justified on the basis of objective and reasonable criteria. It generally requires equality de jure, rather than de facto. Formal equality, in the form of equality before the law and equal rights, is at the centre of liberal feminist goals in relation to women's equal participation in politics, employment, the economy, and education. 66 The alternative approach to equality of access is substantive equality, which sees equality in terms of outcome. This formulation may envisage social justice as the end objective, albeit with a particular standard of social justice in mind. It permits deviations from strict equality, such as "special measures" or differences in treatment, designed to elevate persons to that standard. 67 Substantive equality can be achieved, for example, through positive or affirmative action, protective or corrective measures, recharacterization of human rights, or a gender-sensitive discrimination principle. 68 Due to its limited consideration of women's structural disadvantages, especially in the private sphere, formal equality is rejected. Instead, substantive equality is promoted as it offers more hope to bring

different religions, nationalities, or linguistic minorities, or even limited to different classes. See generally MOECKLI, supra note 56, for an excellent summary of the origins of the principles of equality and non-discrimination generally. 61. Beth Gaze, Some Aspects of Equality Rights: Theory and Practice, in RETHINKING HUMAN RIGHTS 189, 190 (Federation Press 1997). 62. Catherine A. Mackinnon, Equality Remade: Violence Against Women, in ARE WOMEN HUMAN? AND OTHER INTERNATIONAL DIALOGUES 105 (The Belknap Press of Harvard Univ. Press 2006). 63. McKEAN, supra note 59, at 3. 64. Id. 65. Katarina Frostell, Gender Difference and the Non-Discrimination Principle in the CCPR and the CEDAW, in NEW TRENDS IN DISCRIMINATION LAW-INTERNATIONAL PERSPECTIVES 29, 29 (Turku Law School 1999). 66. Nicola Lacey, Legislation Against Sex Discrimination: Questions from a Feminist Perspective, 14 J.L. & Soc'v 411,413 (1987). 67. MCKEAN, supra note 59, at 3. 68. Frostell, supra note 65, at 30.

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about "effective and genuine equality." 69 Originally believed to be the great hope for the international human rights system in its treatment and responses to women, rights to equality and non-discrimination on the basis of sex have come under considerable scrutiny. In particular, the initial model employed by international institutions assumed a female to male progression, or as Andrew Byrnes puts it, "if men are entitled to something, then women should be entitled to the same thing; whereas true equality may involve the reworking of the core concept of the right to ensure that women enjoy that right fully." 70 Noreen Burrows contends that human rights norms seek to place women in the same situation as men and that this therefore fails to account for any differences. 71 Increasingly, feminist theorists have taken issue with this approach to equality as assimilation, arguing that it fails to take into account situations in which men and women are not or cannot be similarly situated and that it does not allow space for "deep-seated reform required to realise substantive gender equality" but instead accepts the existing system as legitimate. 72 "[T]he prohibition of discrimination is not a prohibition of differentiation . . . . [D]istinctions are prohibited only to the extent that they are unfavourable. Equality could easily be transformed into injustice ifit were to be applied to situations which are inherently unequal." 73 It has also been asserted that the orientation of the CEDA W around nondiscrimination will not compel "a broader, nonrights-based examination of female subordination" because Article l defines discrimination in terms of unequal rights. 74 For some scholars, the paradigm of "equality as parity" employed in the CEDA W and other international instruments fails to recognize that "equality is not freedom to be treated without regard to sex but freedom from systematic subordination because of sex." 75 Although there have been some shifts away from traditional

69. Minority Schools in Albania, Advisory Opinion, 1935 P.C.I.J. (ser. A/B) No. 64, at 19 (Apr. 6). 70. Andrew Byrnes, Women, Feminism and International Human Rights Law-

Methodological Myopia, Fundamental Flaws or Meaningful Marginalisation?: Some Current Issues, 12 AUSTL. Y.B. INT'L L. 205, 224 (1992). 71. Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORJC TO REALITY 8, 93-95 (Tom Campbell et al. eds., Basil Blackwell 1986). 72. MUNRO, supra note 50, at 16. 73. Francoise Krill, The Protection of Women in lnternational Humanitarian Law, 249 INT'L REV. REDCROSS 337,339 (1985). 74. Jennifer Ulrich, Confronting Gender-Based Violence with International Instruments: Is a Solution to the Pandemic Within Reach, 7 IND. J. GLOBAL LEGAL STUD. 629, 643 (2000). 75. Charlesworth, Chinkin & Wright, supra note 41, at 630; Margareth Etienne, Addressing Gender-Based Violence in an International Context, 18 HARV. WOMEN'S L.J. 139, 148 (1995).

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constructions of equality, as the subsequent parts of this article demonstrate, the traditional equality paradigm remains the dominant framework, even after Beijing. 76 The international legal system has had difficulty dealing with multiple forms of discrimination, and the tendency to elide the concepts of equality and non-discrimination is said to limit their "transformative possibilities," in particular by limiting equality to a guarantee of equal opportunity. 77 International law has also developed a hierarchy of forms of discrimination in which race discrimination is considered more serious than other forms of discrimination. 78 The concept of equality further prompts debate on what distinctions can be justified as compatible with equality principles and upon what criteria those distinctions should be judged; whether intention is a requirement for discrimination; whether purpose and effect are relevant; 79 and whether there is any real difference between discrimination and inequality. Because of the concerns with existing understandings of equality and non-discrimination and the many questions that remain unanswered, many feminist scholars have sought new ways of theorizing these concepts. The work of three scholars is outlined here. Drawing on the work of the Canadian Supreme Court, Kathleen Mahoney has recommended a new vision of equality in terms of "socially created advantage and disadvantage" instead of sameness and difference. 80 She claims that the sameness/difference model does not permit any examination of how the legal system maintains and constructs the disadvantage of women or how the law is "male-defined and built on male conceptions of problems and of harms." 81 The problem with the sameness/difference model is that it serves women only in "a derivative way," that is, when they suffer violations in the same way as men. This in turn supports the "male world-view and supports male dominance in the international order. " 82 It cannot cope with or take into account female76. Rebecca J. Cook, Advancing International Law Regarding Women, 91 AM. Soc'y INT'L L. PRoc. 308, 316 ( 1997). 77. Hilary Charlesworth, Concepts of Equality in International Law, in LITIGATING RIGHTS: PERSPECTIVES FROM DOMESTIC AND INTERNATIONAL LAW 137, 143-47 (G. Huscroft & R. Rishworth eds., Hart Publishing 2002). See also Lacey, supra note 66, at 411. 78. Charlesworth, supra note 77, at 143-47. But see, Juridical Condition and Rights of the Undocumented Migrants (Advisory Opinion), InterAm. Ct. H.R., OC-18/03, Sept. 17, 2003, ,i 101 (arguing that the fundamental principle of equality and non-discrimination has entered the realm of jus cogens). The Opinion refers to various forms of discrimination and inequality, including those based on race and gender, without distinguishing between them). 79. Kathleen E. Mahoney, Canadian Approaches to Equality Rights and Gender Equity in the Courts, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES, supra note 49, at 442. 80. Id. at 441. 81. Id. at 442. 82. Id. at 438.

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specific circumstances. Moreover, under the Aristotelian model, systemic and persistent disadvantage is not contemplated. It assumes that social institutions should continue to exist as they are. To be equal, women only need the same chance as men to participate in them. 83 Mahoney writes, "This universalistic, gender-neutral approach does not recognize that institutional structures may impinge differently on men and women." 84 Instead, Mahoney supports the replacement of the Aristotelian test for one that focuses on the impact of laws and on the context of the claimant. What is at issue is the disadvantage suffered. Under this view, no male comparator is needed: lf a person is a member of a persistently disadvantaged group and can show that a distinction based on personal characteristics of the individual or group not imposed on others continues or worsens that disadvantage, the distinction is discriminatory whether intentional or not. 85 This test requires decision- and policy- makers to look at women or other claimants "in their place in the real world" and "to confront the reality that the systemic abuse and deprivation of power women experience is because of their place in the sexual hierarchy." 86

Iris Marion Young has proposed an analysis of inequality in terms of oppression and domination rather than distributive justice. Existing models of sameness/difference equality fail to consider issues of institutional organization and decision-making power. 87 She argues that reliance on discrimination as the benchmark is problematic because, as Robert Fullinwider states, "if we do not do preferential hiring, we permit discrimination to exist. But preferential hiring is also discrimination. Thus, if we use preferential hiring, we also permit discrimination to exist. The dilemma is that whatever we do, we permit discrimination." 88 Admitting that affirmative action policies discriminate, Young suggests that the focus of the debate has been skewed. She claims that we must acknowledge that discrimination is not the only or primary wrong that certain groups suffer. Instead, "[o]ppression, not discrimination, is the 83. Id. at 442-43. 84. Id. at 443. 85. Id. at 444 (referring to Andrews v. L. Soc'y of B.C., [1989) l S.C.R. 143 (Can.), and subsequent decisions in Reference Re Workers' Compensation Act, 1983 (Nfld), [ I 989) l S.C.R. 992 and R. v. Turpin, [1989] I S.C.R. 1296). 86. Id. at 445. 87. IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 193 (Princeton Univ. Press 1990). 88. ROBERT K. fULLJNWIDER, THE REVERSE DISCRIMINATION CONTROVERSY 156 (Rowman & Allanheld 1980) as cited in JUSTICE AND THE POLITICS OF DIFFERENCE, supra note 87, at 194.

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primary concept for naming group-related injustice." She notes that "[w ]bile discriminatory policies sometimes cause or reinforce oppression, oppression involves many actions, practices, and structures that have little to do with preferring or excluding members of groups in the awarding of benefits." 89 Under her analysis, special measures would not be framed as an exception to the principle of non-discrimination, but rather as one strategy to deal with structures of oppression and domination. 90 Supporting the view of Young, Charlesworth has suggested less emphasis be given to nondiscrimination. Instead, she recommends that a broader idea of equality ought to be developed. She has argued that the elision between the two concepts has constrained their ability to deal with women's realities. 91 Catharine MacKinnon is the third feminist scholar I wish to mention who has recommended a re-orientation of the concept of equality. Because women are below men in social, economic, and political indicators, she argues that the movement for equality should not be oriented to being the same as men, but on "ending violation and abuse and second-class citizenship" of women because of their sex. 92 The mainstream equality model of sameness/difference relies on a male standard and thereby relegates women to a status of inferiority indefinitely. That model has been unable to cope with real differences such as pregnancy, systematic social disadvantages such as sex segregation in the workforce resulting in lack of equal pay for work of comparable worth, or violence against women that is systematically tolerated worldwide. 93 It offers only two alternative routes: to be the same as men, or to recognize women's differences and to grant "special benefits" or "double standards." 94 According to MacKinnon, the problem with this is that "[t]he sameness standard gets women, when they are like men, access to what men already have; the differences rule seeks to cushion the impact of women's distinctiveness or value women as they are under existing conditions." 95 Largely the mainstream equality model has granted men the benefit of those few things women have historically had. 96 "If systematic relegation to inferiority is what is wrong with inequality, the task of equality law is to end that status, not to focus on conditions under which it can be justified." 97 89. Id. at 195. 90. Charlesworth, supra note 77, at 147. 91. Id. 92. MacKinnon, supra note 62, at 108. 93. Catharine A. MacKinnon, Making Sex Equality Real, in ARE WOMEN HUMAN? AND OTHER INTERNATIONAL DIALOGUES, supra note 62, at 71, 73. 94. Id. at 72. 95. Id. 96. Id. at 73. 97. Id. at 74.

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In MacKinnon's reorientation, the concept that has emerged, which she suggests has already taken place in many different jurisdictions, is equality as lack of hierarchy, rather than sameness or difference, in a relative universality that embraces rather than eliminates or levels particularity. A refusal to settle for anything less than a single standard of human dignity and entitlement combines here with a demand that the single standards themselves arc equalized. All this leaves Aristotle in the dust. . . . Its principles include: if men do not do it to each other, they cannot do it to us.98

Inequality is about dominance and subordination, not sameness and difference. "The fundamental issue of equality is not whether one is the same or different; it is not the gender difference; it is the difference gender makes." 99 MacKinnon argues that as soon as all forms of violence against women in society, and impunity for it in law, are recognized as sex inequality violations as re-imagined by her, "law will be made new m women's hands." 100 Although each scholar has articulated their re-conceptualization of equality/non-discrimination in a slightly different way, it is possible to draw out three common factors. First, they agree that the sameness/difference equality model is inadequate to tackle the underlying social disadvantage or sexual hierarchy that exists. This is because it seeks to put women in the same position as men without deconstructing institutional systems that reinforce that inequality. It does not therefore take into account female-specific differences. This view of equality is also reinforced by focus on narrow ideas of discrimination as distinction instead of broader conceptions of equality as the end of oppression or disadvantage. Second, the sameness/difference model posits men's experiences as the norm and therefore ignores the reality of women's lives or the context in which women live and work. Third, the answer to these problems is to adopt a broad view of inequality as social injustice or social disadvantage/oppression/hierarchy in order to identify what is really happening in women's lives and to construct policies and programs around that reality. The merit of these reformulations of equality will be evaluated alongside the sameness/difference paradigm in this article. But first, how have these principles been translated into international law?

98. MacK.innon, supra note 62, at 108-09. 99. MacK.innon, supra note 93, at 74. 100. MacK.innon, supra note 62, at 111.

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D.

EQUALITY AND NON-DISCRIMINATION ON THE BASIS OF SEX IN INTERNATIONAL LAW

1.

U.N. Charter and the Universal Declaration ofHuman Rights

The notions of equality and non-discrimination are foundational principles of the U.N. system of international law. The U.N. Charter 1945 endorsed equality between men and women as a fundamental human right. 101 Of the U.N. Charter, the U.N. has stated that "no previous legal document had so forcefully affirmed the equality of all human beings, or specifically outlawed sex as a basis for discrimination." 102 These principles were elaborated in the Universal Declaration of Human Rights 1948 (UDHR). 103 Article I of the UDHR provides, "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.". 104 It is claimed by some scholars that the "spirit of brotherhood" was extended to women only with the adoption of the CEDA W. 105 Article 2 of the UDHR provides, "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." 106 Article 7 of the UDHR further guarantees equality before the law, stating, "All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination." 107 The UDHR also calls for equal rights in respect to courts and tribunals, 108 public service and political participation, 109 as well as within 101. U.N. Charter art. l, para. 3, art. 8, art. 55, para. c. See also U.N. Charter Preamble: "We the people of the United Nations determined ... to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women."

102. U.N. DEP'T OF PUB. INFO., THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN 1945-1996, at 33, U.N. Sales No. 96.1.9 (1996). 103. Universal Declaration of Human Rights 1948, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) [hereinafter UDHR]. 104. UDHR, supra note 103, art. l (emphasis added). 105. Rebecca L. Hillock, Establishing the Rights of Women Globally: Has the United

Nations Convention on the Elimination of All Forms of Discrimination against Women made a Difference?, 12 TuLSA J. COMP. & lNT'L L. 481,482 (2005). 106. UDHR, supra note I 03, art. 2. l07. UDHR, supra note 103, art. 7. l08. UDHR, supra note 103, art. IO. l09. UDHR, supra note 103, art. 21. This provision is limited, though, to citizens in its references to political participation in the government of"his country."

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marriage 1I0 and in the workplace. I11 All other rights apply to "everyone," with the exception of measures of special protection during motherhood and childhood. 112 "Everyone" in this sense includes men as well as women. 113 The inclusion of equality guarantees in the U.N. Charter and the UDHR resulted from heavy lobbying from women delegates and nongovernmental organizations. 114 Although sex was always listed alongside other identity-based attributes in early U.N. documentation, such as race, religion, and political opinion, it has been argued that the concept of equality that was initially conceived in international law related to the principle of equality of states, 115 rather than equality between persons. Early equality rights also focused heavily on racial discrimination, rather than sex discrimination. 116 2.

International human rights instruments

These general principles in the UDHR were transferred, with little change, in binding form to the two general human rights Covenants: the International Covenant on Civil and Political Rights (ICCPR) 117 and the International Covenant on Economic, Social and Cultural Rights (ICESCR). 118 Each treaty contains an overarching accessory provision on non-discrimination in which the provisions of the treaty are to be applied to all individuals within the territory and subject to the jurisdiction of the state 110. UDHR, supra note 103, art. 16. 111. UDHR, supra note 103, art. 23. 112. UDHR, supra note 103, art. 25. 113. At one stage during the drafting process of the UDHR, the specific reference to "equality between men and women" had been removed. The language was reinserted due to arguments by some delegates that the additional non-discrimination phraseology was essential because "everyone" did not necessarily mean every individual, regardless of sex, in some countries. Similarly, an early version of Article 1 that started with "all men" was corrected, albeit amid considerable resistance. Even Eleanor Roosevelt stated that it had become customary to refer to "mankind" when also referring to women and that translation problems made it unadvisable to use "human beings" instead of"men." In fact, the Human Rights Commission had voted upon and accepted the phrase "all people, men and women," but it is not clear how the final version reverted to "all human beings." See JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ORJGINS, DRATTING, AND INTENT I I 8 (Univ. of Penn. Press 1999). 114. THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN 1945-1996, supra note I 02, at 32; MORSINK, supra note 113, at 117-18. I 15. IAN BROWNLIE, PRJNCJPLES OF Pulluc INTERNATIONAL LAW 289-90 (Oxford Univ. Press 1998), as referred to in Charlesworth, supra note 77, at 137. 116. See, e.g., Genocide Convention, supra note 18; ICERD, supra note 14; the International Convention on the Suppression and Punishment of the Crime of Apartheid, Nov. 30, 1973, 1015 U.N.T.S. 243 (July 18, 1976). 117. ICCPR, supra note 14, arts. 2, 3, 14(1), 26. 118. ICESCR, supra note 14, arts. 2, 3.

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party "without distinction of any kind," including on the basis of sex. 119 Each document includes an additional provision that spells out that states parties to each Covenant "undertake to ensure the equal right of men and women to the enjoyment of all [the] rights" contained therein. 120 Regardless of overlap, the Third Committee of the General Assembly at the time of drafting the ICESCR stated that the purpose of Article 3 in addition to Article 2(3) was for emphasis. 121 This same argument can be extended to the drafting model in the ICCPR, and it has been accepted by a number of commentators who recall the positive nature of Article 3 of the ICCPR. 122

These non-discrimination guarantees are non-derogable and cannot be removed, suspended or weakened by states even during states of emergency. 123 Similar accessory non-discrimination provisions are found in most of the major human rights instruments, including the CRC, 124 the IMWC, 125 and the ICRPD. 126 However, there are no provisions outlawing 119. lCCPR, supra note 14, art. 2(1); ICESCR, supra note 14, art. 2. 120. ICCPR, supra note 14, art. 3; ICESCR, supra note 14, art. 3. I 21. The Third Committee stated that ''the same rights should be expressly recognized for men and women on an equal footing and suitable measures should be taken to ensure that women ha[ ve] the opportunity to exercise their rights . . . . Moreover, even if article 3 overlapped with article 2, paragraph 2, it was still necessary to reaffirm the equality rights between men and women. That fundamental principle, which was enshrined in the Charter of the United Nations, must be constantly emphasized, especially as there were still many prejudices preventing its full application." Draft International Covenants on Human Rights Report of the Third Committee, U.N. Doc. N53l65, 1 85 (Dec. 17, 1962), as restated in ECOSOC, Sub-Comm. on Econ., Soc. & Cultural Rights, General Comment No.

16: The Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights, 1 2, U.N. Doc. E/C.12/2005/3 (Aug. 11, 2005) [hereinafter General Comment No. 16: The Equal Right ofMen and Women]. 122. E.g., MANFRED NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR COMMENTARY 77 (Engel 2005) (arguing that Article 3 was inserted merely for emphasis, although with a "positive goal in mind"). See also Lord Lester of Heme & Sarah Joseph, Obligations of Non-Discrimination, in THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND UNITED KINGDOM LAW 565 (David Harris & Sarah Joseph eds., Clarendon Press 1995) (stating that Article 2 relates to non-discrimination, a negative obligation, whereas Article 3 guarantees equality, a positive obligation). 123. ICCPR, supra note 14, art. 4; ICESCR, supra note 14, art. 2, as interpreted by ECOSOC, Sub-Comm. on Econ., Soc. & Cultural Rights, General Comment No. 3: The Nature of State Parties Obligations, U.N. Doc. E/1991/23 (Dec. 14, 1990). 124. CRC, supra note 14. "States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status." Id. art. 2(1). Article 2 of the CRC imposes positive obligations to protect against discrimination in particular circumstances. "States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members." Id. art. 2(2). 125. IMWC, supra note 14, art. 7. "States Parties undertake, in accordance with the

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sex discrimination or inequality between men and women in either the UNCAT or the ICERD. 127 The ICCPR also guarantees equal rights to marriage, during marriage, and at its dissolution; 128 equality before courts and tribunals; 129 and the right to vote for citizens and to be elected based on universal and equal suffrage, and equal access to public service. 130 Under the ICCPR, children are entitled to measures of protection in line with their status as minors on the basis of non-discrimination, including sex. 131 The ICESCR guarantees equality in the context of fair wages, equal remuneration for work of equal value, and access to promotion, without discrimination. 132 It further provides for primary education to be provided to all, for secondary education to be generally available, and for higher education to be equally accessible based on capacity. 133 In addition, the ICCPR includes a stand-alone or autonomous right to equality in Article 26 of the ICCPR, which guarantees equality before the law and equal protection of the law. 134 Although there is no equivalent in the ICESCR, Article 26 of the ICCPR has been interpreted broadly so as to protect against unequal treatment in any area of law, including economic, social, and cultural rights (see below). The first U.N. treaty devoted entirely to equality and nondiscrimination was the ICERD. The ICERD builds on the Charter international instruments concerning human rights, to respect and to ensure to all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in the present Convention without distinction of any kind such as to sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status." Id. 126. ICRPD, supra note 14, art. 4. The ICRPD also contains a stand-alone nondiscrimination provision. Id. art. 5. 127. Clearly the ICERD is a non-discrimination instrument, but it is specifically focused on racial discrimination. The CERD, though, has recognized the inter-sectionality of race and sex: U.N. Comm. on the Elimination of Racial Discrimination, General Recommendation No. X-YV: Gender-Related Dimensions of Racial Discrimination (Mar. 20, 2000), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRl/GEN/1/Rev.7 (May 12, 2004) [hereinafter Gender-Related Dimensions ofRacial Discrimination]. 128. ICCPR, supra note 14, art. 23. 129. Id. art. 14(1). 130. Id. art. 25. 131. Id. art. 24. 132. ICESCR, supra note 14, art. 7. 133. Id. art. 13. 134. ICCPR, supra note 14, art. 26 provides: "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."

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references to dignity and equality and translates them into the context of race discrimination, 135 which is defined 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. 136

The second treaty in which rights to equality and non-discrimination have been developed is in the specific context of sex. In 1979, the U.N. General Assembly adopted the CEDAW. In many respects, its provisions parallel those of the ICERD. In particular, the definition in the CEDA W is very similar to that in the ICERD: [A]ny distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. 137

Among the main discussions held during the drafting process to the CEDA W before the Commission on the Status of Women was whether the treaty ought to be limited in its scope to sex discrimination against women specifically or on grounds of gender/sex more generally. 138 The final version was a synthesis of these two views, with both discrimination "against women" and "distinction, exclusion or restriction on the basis of sex" included, 139 although the treaty clearly only covers sex discrimination as it applies to women. Article 2 of the CEDAW, which condemns discrimination against women in all its forms and calls on governments to take all appropriate measures to eliminate such discrimination "by any person, organization or enterprise," 140 prohibits discrimination in both the public sphere and in the private sphere. Further, Articles 2(f) and 5(a) impose obligations upon states to address cultural and traditional practices that constitute discrimination against women. In effect, the treaty seeks to redress 135. Charlesworth, supra note 77, at 138. 136. ICERD, supra note 14, art. l. 137. CEDA W, supra note 14, art. 1. 138. See LARS ADAM REHOF, GUIDE TO THE TRAVAUX PREPARATOIRES OF THE UNITED NATIONS CONVENTION ON THE ELIMJNATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN 44 (Martinus Nijhoff Publishers 1993). See generally McKEAN, supra note 59, on background to the drafting of the CEDA W and other instruments on equality between women and men. 139. REHOF, supra note 138, at 44. 140. CEDAW, supra note 14, art. 2.

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structural causes of inequality. 141 The CEDA W also permits the introduction of temporary special measures (or time-limited measures of affirmative action), providing: 1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. 2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory. 142

The third discrimination-based treaty at the U.N. level is the ICRPD. It borrows the definition employed in the two earlier treaties, with an important addition in relation to "reasonable accommodation" of difference: any distinction, exclusion or restnct1on on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation; "Reasonable accommodation" means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. 143

Unlike the ICERD, the ICRPD contains two further provisions that acknowledge the multiple forms of discrimination suffered by women with disabilities. 144 The ICRPD recognizes that "women and girls with disabilities are subject to multiple discrimination and in this regard [states parties] shall take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms." 145 It further calls upon states parties "[t]o combat stereotypes, prejudices and harmful practices 141. Id. art. 2(f), art. 5(a). 142. Id. art. 4. 143. ICRPD, supra note 14, art. 2. See also id. art. 5, which provides further explanations for what constitutes equality and non-discrimination. 144. Seeid.arts.3,6. 145. Id. art. 6.

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relating to persons with disabilities, including those based on sex and age, in all areas of life." 146 Some other forms of discrimination have been dealt with in nonbinding international instruments. 147 Apart from the omission of equality guarantees in some human rights instruments, 148 the principles of equality and non-discrimination are now well established in international legal instruments, and the normative framework is a reasonably comprehensive one. The problem with the international legal framework is not that rights to equality and non-discrimination on the basis of sex are missing. Rather the issue is how these concepts are interpreted and applied. Some of the difficulties arise from the explicit definitions outlined above that focus on distinctions, exclusions, and restrictions: that is, they focus on the negative face of discrimination rather than on the positive face of equality. How have these concepts been interpreted and applied in practice?

3.

International jurisprudence (a) Formal versus substantive equality

Cases raising equality and non-discrimination date to the inter-war period. The Permanent Court of International Justice (PCIJ) considered a number of cases dealing with the treatment of minorities in Europe. In Minority Schools in Albania, the PCIJ noted: "[e]quality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of different treatment in order to attain a result which establishes equilibrium between different situations." 149 The PCIJ's successor, the International Court of Justice, has also dealt with non-discrimination in a number of cases. 150 Of particular note is the dissenting opinion of Judge Tanaka in the South West Africa Cases. 151 In rejecting South Africa's claim that differential treatment on the basis of race (apartheid) was consistent with international law, he argued "[t]he 146. Id. art. 8. 147. See. e.g., U.N. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 1981, G.A. Res. 36/55, U.N. Doc. A/RES/36/55 (Nov. 25, 1981), reprinted in 211.L.M. 205 (1982). 148. E.g., sex discrimination is not explicitly prohibited in the UNCAT, supra note 14. 149. Minority Schools in Albania, supra note 69, at 13. 150. See, e.g., Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.) 1952 I.CJ. 176 (Aug. 27). This is a case in which France was exempted from import controls in Morocco whereas the U.S. was subjected to them. The ICJ held unanimously that this was discrimination in favor of France and that the U.S. could claim for its unfavorable treatment. 151. See South West Africa, supra note 58.

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fundamental point in the equality principle is that all persons have an equal value in themselves." 152 In endorsing the Aristotelian view that treating different matters equally would be as unjust as treating equal matters differently, Judge Tanaka nonetheless offered some parameters on how to determine acceptable differentiation. He referred specifically to justice and reasonableness. He also rejected the idea that motive or purpose was relevant to determining whether a distinction is arbitrary or unlawful. 153 In 1981, the Human Rights Committee (HRC) in its General Comment on Article 3 stated that it covers both equality in law and in fact. 154 In 1989, the HRC adopted a subsequent General Comment on equality and non-discrimination in relation to Article 26. This General Comment provides that "[n]on-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes a basic and general principle relating to the protection of human rights." 155 Referring to the definitions of discrimination contained in the ICERD and the CEDAW, the HRC stated that the Committee believes the term "discrimination" as used in the Covenant should be understood to imply 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. 156

This definition of discrimination is "relatively broad" in two main respects: it does not require proof of discriminatory intent and it encompasses both direct and indirect discrimination. 157 In addition the HRC noted that treatment on an "equal footing" does not mean identical treatment in every instance, but it recalled that any exceptions are explicitly referred to in the Covenant itself. 158 In spite of its suggestion that any 152. Id. at 288, 303. 153. Id. at 304. 154. U.N. Hum. Rts. Comm., General Comment No. 4: Equality Between the Sexes, 'II 2, U.N. Doc. HRI/GEN/1/Rev.l (Jul. 30, 1981). 155. U.N. Hum. Rts. Comm., General Comment No. 18: Non-Discrimination, 'II 1, U.N. Doc. HRI/GEN/1/Rev.5 (Nov. 10, 1989) [hereinafter General Comment No. 18: NonDiscrimination]. See also U.N. Comm. on the Elimination of Racial Discrimination, General Recommendation XIV: Definition of Discrimination, 'II 1, U.N. Doc. A/48/18 (Mar. 22, 1993) [hereinafter General Recommendation XIV: Definition of Discrimination]. 156. General Comment No. 18: Non-Discrimination, supra note 155, 'II 7. 157. Charlesworth, supra note 77, at 140. 158. General Comment No. 18: Non-Discrimination, supra note 155, 'II 8. The Committee gives the examples of Article 6(5) (exception to the death penalty for pregnant women or individuals under 18 years of age), Article 10(3) (segregation of minors from adults in prisons), and Article 25 (guarantee of political rights, exception of non-citizens).

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exceptions to identical treatment are self-contained in the Covenant, the HRC has added that "not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant." 159 The HRC further accepts that affirmative action may be required to satisfy equality guarantees and that the former does not contravene the latter. 160 Like the HRC, the Committee on Economic, Social and Cultural Rights (CESCR) and the Committee on the Elimination of Racial Discrimination (CERD) have each accepted that equality includes both formal and substantive equality. 161 According to the CESCR, formal equality is achieved if a law or policy treats men and women in a "neutral manner" (that is, regardless of their sex), whereas substantive equality requires the effect of those laws, policies, and practices to alleviate any "inherent disadvantage" of either sex. 162 In regard to the latter, the CESCR has acknowledged that temporary special measures may be needed to bring disadvantaged groups "to the same substantive level as others." 163 Deferring to the definition of discrimination in the ICERD and the CEDA W, the CESCR has stated that direct discrimination occurs when differential treatment is based exclusively on sex and characteristics of women that cannot be objectively justified. 164 Indirect discrimination, in contrast, occurs when a law, policy, or practice does not appear on its face to be discriminatory but is discriminatory in its effect. 165 Discriminatory purpose or intent is considered irrelevant. Generally, the HRC has held that laws that discriminate on their face between men and women breach Article 26. It has done so in the fields of, inter alia, immigration regulations, unemployment benefits, widow pensions, and access to courts in relation to matrimonial property. 166 159. Id. ,r 13. 160. Id. ,r 10. 161. General Comment No. 16: The Equal Right of Men and Women, supra note 121, ,r,r 6-15; Report of the Committee on Elimination ofRacial Discrimination, supra note 38. 162. General Comment No. 16: The Equal Right of Men and Women, supra note 121, ,r,r 7-8. 163. Id. ,r 15. 164. Id. ,r 12. 165. Id. ,r 13. 166. See, e.g., U.N. Hum. Rts. Comm., Shirin Aumeeruddy-Cziffra and 19 Other Mauritian Women v. Mauritius, U.N. Doc. CCPR/C/12/D/35/1978 (Apr. 9, 1981) (finding Mauritian legislation that required foreign husbands of Mauritian nationals to apply for residence permits but did not make the same requirement of foreign wives of Mauritian nationals violated of a number of ICCPR provisions, including Article 26); U.N. Human Rights Comm., Ave/lanai v. Peru, U.N. Doc. CCPR/C/34/D/202/1986 (Oct. 31, 1988) (holding a Peruvian law that prevented married women from taking legal action with respect to matrimonial property breached Article 26); U.N. Hum. Rts. Comm., Broeks v. The

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However, the HRC has rejected other cases of facially discriminatory law. In Vos, for example, the HRC accepted facially discriminatory legislation on the basis that there was no discriminatory intent, 167 contrary to the general position in international law since Judge Tanaka's judgment in the South West African Cases. In fact, the intent of the legislation was to streamline pensions and to afford subsistence level income to all persons who qualified. The law allowed Dutch men with a disability to retain the right to a disability allowance when their wives died; but on the death of their husbands, disabled women were only eligible for a widow's pension, which in Ms. Vos' case was less than the disability pension. Charlesworth has criticized this decision for being based on "outmoded historical assumptions about the working habits of women and [for] privileg[ing] administrative convenience over the guarantees in Article 26." 168 In fact the Vos judgment conflicts with other, earlier decisions of the HRC that disregarded questions of intent, as well as its 1989 General Comment, outlined above. Separate opinions in other decisions have made allowances for socio-economic developments to permit a margin of discretion to states in relation to discriminatory legislation. 169 This leniency contrasts with the Netherlands, U.N. Doc. CCPR/C/29/D/172/1984 (Apr. 9, 1987) (successfully challenging unemployment legislation that excluded Broeks from continued unemployment benefits because she was married at the time in question, which would not have been the case if she were a man, married or unmarried); U.N. Human Rights Comm., Pauger v. Austria, U.N. Doc. CCPR/C/65/716/1997 (Apr. 30, 1999) (successfully invocating Article 26 to challenge Austrian law that distinguished between widowers, who were entitled to two-thirds of the full pension entitlement, and widows, who were entitled to the full pension); Zwaan-de Vries v. The Netherlands, U.N. Doc. CCPR/C/OP/2 (Apr. 9, 1987) (finding discrimination on grounds of sex and marital status where the municipality in question rejected a woman's application for continued support under unemployment benefits legislation that barred married women but not married men). 167. U.N. Hum. Rts. Comm., Vos v. The Netherlands, U.N. Doc CCPR/C/66/D/786/1997 (Jul. 29, 1999) [hereinafter Vos. v. Netherlands]. 168. Charlesworth, supra note 77, at 141. Note that the dissenting opinion submitted by Urbina and Wennergren rejected the analysis of the majority, claiming that some degree of flexibility was required in the application of the two conflicting pension schemes so that an individual was not discriminated against on grounds of sex or marital status. Vos v. The Netherlands, supra note 167, Appendix. Other problematic cases include U.N. Human Rights Comm., Ballantyne, Davidson & McIntyre v. Canada, U.N. Doc. CCPR/C/47/D/359/1989 & 385/1989/Rev.l (May 5, 1993) (holding a law that prohibited Canadian citizens from displaying commercial signs in English outside a business premises did not breach Article 26 on the grounds that "the prohibition [of using English] applies to French speakers as well as English speakers"). The HRC did accept other breaches, such as that of Article 19. 169. U.N. Human Rights Comm., Sprenger v. The Netherlands, U.N. Doc. CCPR/C/44/D/395/1990 (Mar. 31, 1992). In a separate opinion, Messrs Ando, Hemdl and N'diaye argued that it was necessary to take into account "the reality that the socioeconomic and cultural needs of society are constantly evolving" and suggested that discrimination in socio-economic rights may lag behind developments in other fields. Id. Appendix. See also U.N. Human Rights Comm., Oulajin & Kaiss v. The Netherlands, U.N.

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view of the CESCR that, while economic and social rights are to be "progressively realised," equality guarantees are of immediate effect. 170 The CERD has similarly endorsed the view that "[a] distinction is contrary to the [ICERD] if it has either the purpose or effect of impairing particular rights and freedoms." 171 The CERD derives its view from the language of Article 2(1)(c), which imposes an obligation on states parties to nullify any law or practice which has the effect of creating or perpetuating racial discrimination. 172 The CERD also indicates that any differentiation of treatment is to be judged against "the objectives and purposes of the Convention" 173 and that "[i]n seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin." 174 The position taken by CERD appears to be broader than that adopted by the HRC and the CESCR in two main respects. First, it requires any justifications for differential treatment to be in line with the principles and purposes of the Convention, compared with the position taken by the HRC and the CESCR, which accept "reasonable and objective justifications" delinked from the treaty scope. Second, the CERD suggests that the assessment standard should be ''unjustified disparate impact upon a group." It thus considers racial discrimination within the context of collective disadvantage rather than as an individual aberration. In the specific context of discrimination against non-citizens, in which some minor distinctions are permitted within the text of various treaties, the CERD has stated that "differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not Doc. CCPR/C/46/406/1990 & 426/1990 (Nov. 5, 1992) (separate opinion of Messrs Herndl, Milllerson, N'diaye & Sadi). 170. General Comment No. 16: The Equal Right of Men and Women, supra note 121, ,r 16. The only allowable exception for the non-discriminatory application of economic rights by states parties to the lCESCR is for non-citizens located in developing countries. lCESCR, supra note 14, art. 4. 171. WOUTER VANDENHOLE, NON-DISCRIMINATION AND EQUALITY IN THE VIEW OF THE

U.N. HUMAN RIGHTS TREATY BODIES 37 (Intersentia 2005). 172. ICERD, supra note 14, art. 2 provides: "States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its fonns and promoting understanding among all races, and, to this end: . . . . Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exist." 173. General Recommendation XIV· Definition of Discrimination, supra note 155, 'I! 2. 174. Id. (emphasis added).

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proportional to the achievement of this aim." 175 The Women's Committee has endorsed a broad reading of discrimination. It has held that "discrimination against women [is] a multifaceted phenomenon that entails indirect and unintentional as well as direct and intentional discrimination." 176 The Women's Committee has argued against maintaining a sole focus on formal or de jure equality because doing so "tends to impede a proper understanding of the complex issue of discrimination, such as structural and indirect discrimination." 177 Both qualitative and quantitative equality are considered to be at the heart of the CEDA W. 178 In spite of these general statements, its case law has been mixed. In Nguyen, the Women's Committee rejected a discriminationrelated case in which the financial compensation for maternity leave differed between salaried and self-employed women due to a restriction of a so-called "anti-accumulation" clause. 179 The complainant was a parttime salaried employee as well as a co-working spouse in her husband's business. Only the joint dissenting opinion stated that the so-called antiaccumulation clause may constitute a form of indirect discrimination: This view is based on the assumption that an employment situation in which salaried part-time and self-employment is [sic] combined, as described by the complainant, is one which mainly women experience in the Netherlands, since, in general, it is mainly women who work part-time as salaried workers in addition to working as family helpers in their husbands' enterprises. 180

175. U.N. Comm. on the Elimination of Racial Discrimination, General Recommendation No. 30 on Discrimination against Non-Citizens, ,i 4, reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies: Addendum, U.N. Doc. HRI/GEN/1/Rev.7/Add.l (Oct. I, 2004). 176. U.N. Comm. on the Elimination of Discrimination against Women, Concluding Comments of the Committee on the Elimination of Discrimination against Women: Ukraine, ,i 279 (Sept. I 0, 2002), in Report of the Committee on the Elimination of Discrimination against Women: Twenty-seventh Session, U.N. Doc. N57/38(PartII); U.N. Comm. on the Elimination of Discrimination against Women, Concluding Comments of the Committee on the Elimination of Discrimination against Women: Kyrgyzstan, ,i 113, U.N. Doc. N54/38/Rev.l (Feb. 5, 1999). 177. U.N. Comm. on the Elimination of Discrimination against Women, Concluding Comments of the Committee: Bulgaria, ,i 232 (May 14, l 998), in Report of the Committee on the Elimination ofDiscrimination Against Women, U.N. Doc. N53/38/Rev.l. 178. U.N. Comm. on the Elimination of Discrimination against Women, General Recommendation No. 25: Temporary Special Measures, ,i 9 (May 12, 2004), in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.7. 179. U.N. Comm. on the Elimination of Discrimination against Women, Nguyen v. Netherlands, U.N. Doc. CEDAW/C/36/D/3/2004 (Aug. 29, 2006) [hereinafter Nguyen v. Netherlands]. 180. Id.

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Unlike the HRC and the CESCR (and most other international bodies), 181 however, the Women's Committee has not accepted what is considered the "widely-used pragmatic" definition of discrimination, being seen as differential treatment in a comparable situation without a reasonable and objective justification. 182 The Women's Committee has indicated that "any objective and reasonable justification" be used only as a basis for the implementation of temporary special measures, not otherwise. 183 Ultimately, therefore, the general approach has been to treat men and women identically by adopting a sameness/difference ideology. The goal appears to be identical treatment unless any differences in treatment can be justified according to "reasonable and objective" criteria, which itself is problematic. Although formal and substantive equality are now accepted, the goal seems still to treat men and women identically, or at least, to treat women in a similar manner to men. I find this general approach of the treaty bodies problematic on three grounds. First, the treaty bodies continue to advance a male standard whether they are dealing with formal or substantive equality. This has the effect of relegating women to a position of inferiority indefinitely. Second, they disregard the gendered application of criteria such as "reasonableness and objectivity" and assume that these are gender-neutral terms. And third, they confine ideas of equality to distinctions and differences rather than, for example, to ideas of the liberation of women from patriarchy and to treatment as equally valued human beings instead of as sub-human. (b) Discrimination versus inequality What then is discrimination? And, how does it relate to equality? The principles of non-discrimination and equality are often used interchangeably, but they are also accorded subtly different meanings. According to the Inter-American Court of Human Rights, "the concepts of equality and non-discrimination are reciprocal, like the two faces of one same institution. Equality is the positive face of non-discrimination. Discrimination is the negative face of equality." 184 The CESCR has stated 181. Id. 182. VANDENHOLE, supra note 171, at 71. 183. U.N. Comm. on the Elimination of Discrimination against Women, Concluding Comments of the Committee: Peru,,;~ 319-320 (July 10, 1998), in Report of the Committee on the Elimination of Discrimination Against Women, supra note 177. 184. Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, OC-4/84 Inter-Am. Ct. H.R. (ser. A) No. 4, at 10 (Jan. 19, 1984). See also Minority Schools in Albania, supra note 69, at 13. ("Equality in law precludes discrimination of any kind."); Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Explanatory Report, Europ. T.S. No. 177, ~ 15; Anne F. Bayefsky,

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that they are "integrally related and mutually reinforcing." 185 Similarly, the Women's Committee has noted that the elimination of discrimination and the promotion of equality are "two different but equally important goals in the quest for women's empowerment." 186 A 2005 study found it to be "inconclusive" whether there is any real difference between the two terms as applied under international law. 187 It is generally accepted, however, that, at a minimum, non-discrimination is a negative right as it prohibits the making of distinctions between individuals or giving preferences on the basis of irrelevant criteria or without reasonable and objective justification, whereas equality is the goal centered around social justice, freedom, and dignity. Equality may also require additional measures (formal and substantive) to reach that goal. Within the equality/non-discrimination discourse, I would submit that non-discrimination should be conceived as a subset of equality. That is, it can be a tool to guide us on the path to equality in particular situations where women seek identical treatment to men. But it is not as far-reaching as equality and cannot achieve equality on its own. Relying solely on nondiscrimination principles is unlikely to bring about transformative outcomes for women as it seems only to deal with facial distinctions rather than issues of oppression, disadvantage, or patriarchy. Its cooption by men to challenge laws that exclude them reveals that it can operate quite separately from ideals of equality. For those scholars who argue that equality should be re-cast as oppression/domination, advantage/disadvantage, or the end of hierarchy, non-discrimination tends to hold back progress as far as it is fixed to the sameness/difference ideology. That is, non-discrimination is based on the idea that there are justified and unjustified distinctions, and the standard against which this is to be judged is typically white men. I would agree with authors like Charlesworth, who assert that the focus of international law on discrimination has been to the detriment of higher goals of equality. 188 Although a sameness/difference ideology worked, for example, in the context of racial discrimination and the ending of apartheid in South

The Principle of Equality or Non-Discrimination in International Law, 11 HUM. RTS. L.J. I, l (1990); Bertie G. Ramcharan, Equality and Nondiscrimination, in THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 246, 252 (Louis Henkin ed., Columbia Univ. Press 1981). 185. General Comment No. /6: The Equal Right of Men and Women, supra note 121, 1) 3. 186. U.N. Comm. on the Elimination of Discrimination Against Women, Concluding Comments of the Committee on the Elimination of Discrimination against Women: Belgium, 1) 146 (Jun. 21, 2002), in Report of the Committee on the Elimination of Discrimination Against Women: Twenty-Seventh Session, supra note 176. 187. VANDENHOLE, supra note 171, at 34. 188. Charlesworth, supra note 77, at 147.

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Africa, it has struggled to be useful beyond legal equality. The same ideology has struggled to keep pace with the problems of social inequality that continue to exist long after unequal laws have been regulated. Rather than comparing women against the male standard that reinforces women's inferior position in society, equality law should be asking instead how to deconstruct domination, disadvantage, or hierarchy. 189 (c) Public and private discrimination In 2000, the HRC issued a General Comment on equality of rights between women and men. 190 Building on its earlier statements, the HRC stated, "Articles 2 and 3 [of the ICCPR] mandate States Parties to take all steps necessary, including the prohibition of discrimination on the ground of sex, to put an end to discriminatory actions both in the public and the private sector which impair the equal enjoyment of rights." 191 According to the HRC, therefore, both public and private inequality or discrimination are accepted as falling within the scope of the ICCPR. In clarifying its general position on public and private violations of human rights, the HRC stated: [T]he positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties' permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. 192

Unlike the ICCPR, the CEDA W has the advantage of an express provision that covers discrimination in public and private spheres of life. 193

189. See discussion at text, supra note 80-100. 190. U.N. Human Rights Comm., General Comment No. 28: Equality ofRights Between Men and Women, U.N. Doc. CCPR/C/21/Rev.l/Add.l0 (Mar. 29, 2000) [hereinafter General Comment No. 28: Equality ofRights]. 191. Id. ,I 4. 192. U.N. Hum. Rts. Comm., General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, ,i 8, U.N. Doc. CCPR/C/21/Rev.l/Add.13 (May 12, 2004) [hereinafter General Comment No. 31: The Nature of the General Legal Obligation]. 193. CEDA W, supra note 14, art. 2.

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As a core provision, 194 the Women's Committee has asserted that any reservation to it is contrary to the object and purpose of the treaty and, therefore, incompatible with international law. 195 Under the due diligence paradigm, the Women's Committee holds state parties responsible for "private acts" if they fail "to act with due diligence to prevent violations of rights, or to investigate and punish acts of violence, and to provide compensation." 196 This paradigm has become the accepted standard for incorporating the acts of non-state actors in international law. 197 In Goekce v. Austria, the Women's Committee held Austria liable for the failure on the part of the Austrian police to respond to an emergency call, which led to the death by shooting of the complainant at the hands of her husband. 198 It stated: The Committee considers that given this combination of factors [which included increasing frequency of violent incidents by the husband over a three-year period], the police knew or should have known that $abide Goekce was in serious danger; they should have treated the last call from her as an emergency, in particular because [her husband] had shown that he had the potential to be a very dangerous and violent criminal. The Committee considers that in light of the long record of earlier disturbances and battering, by not responding to the call immediately, the police are accountable for failing to exercise due diligence to protect Sahide Goekce. 199 194. U.N. Comm. on the Elimination of Discrimination against Women, General Recommendation No. 19: Violence against Women, ,i 10, U.N. Doc. A/47/38 (Jan. 29, 1992) [hereinafter Violence against Women]. 195. U.N. Comm. on the Elimination of Discrimination against Women, Concluding Comments of the Committee: Morocco, ,i 59 (Aug. 12, 1997), in Report of the Committee on the Elimination of Discrimination against Women: Sixteenth Session, U.N. Doc. A/52/38/Rev.l (Jul. 18, 2003); U.N. Comm. on the Elimination of Discrimination against Women, General Recommendation No. 4: Reservations to the Convention, in Report of the Committee on the Elimination of Discrimination against Women: Sixth Session, ,i 579, U.N. Doc. A/42/38 (Jan. l, 1987). 196. Violence against Women, supra note 194, ,i 9. 197. The due diligence standard first emerged in the Inter-American Court of Human Rights in Velasquez Rodriguez v. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 4 (July 29, 1988), in which the state was held liable for failing to take reasonable steps to prevent, prosecute, and punish the crime and provide remedies to the victim. It has also been accepted by the European Court of Human Rights. E.g., M.C. v. Bulgaria, 2003-XII Eur. Ct. H.R. I (Dec. 4, 2003). 198. U.N. Comm. on the Elimination of Discrimination against Women, Goekce v. Austria, U.N. Doc. CEDA W/C/39/D/5/2005 (Aug. 6, 2007) [hereinafter Goekce v. Austria]. 199. Id. ,i 12.1.4. See also U.N. Comm. on the Elimination of Discrimination against Women, Yildirim v. Austria, U.N. Doc. CEDAW/C/39/D/6/2005 (Oct. I, 2007) This case concerned a Turkish woman subjected to physical abuse who was eventually stabbed to death by her husband. The Committee considered that the failure to detain the husband breached the state party's due diligence obligation to protect the complainant. [hereinafter

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The Women's Committee has also held that a perpetrator's right to liberty cannot supersede women's human rights to life and to physical and mental integrity. 200 In spite of its explicit mandate over "private" actors in Article 2(e), the Women's Committee has not, however, extended it any further than the other treaty bodies. At no time has international human rights law recognized, for example, the right of individuals to bring actions directly against their perpetrators, whether government officials or private individuals, before an international court. 201 That is, international human rights law does not have direct horizontal effect. 202 This is arguably the real barrier to dismantling the public/private dichotomy because although private acts can now be brought within the realm of international human rights law, a close linkage with the state is still required. ( d) Culture, custom and structural inequality Several of the treaty bodies have examined structural causes of discrimination. The Women's Committee, for example, has made statements that discrimination is rooted in "traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles." 203 The CEDA W contains a number of provisions that impose obligations upon states parties to address cultural and traditional practices that constitute discrimination against women. Article 2(f), for example, calls on states parties "[t]o take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women." 204 Article 5(a) Yildirim v. Austria]. 200. See U.N. Comm. on the Elimination of Discrimination against Women, A.T. v. Hungary, U.N. Doc. CEDAW/C/32/D/2/2003 (Jan. 26, 2005) [hereinafter A.T. v. Hungary]; Goekce v. Austria, supra note 198; Yildirim v. Austria, supra note 199. 201. One could argue that the international criminal tribunals and the International Criminal Court serve this purpose, but they are generally limited to crimes under the 1949 Geneva Conventions and to criminal prosecution in the context of crimes committed during war or on a widespread or systematic scale. 202. The HRC stated that "article 2, paragraph I, obligations are binding on States [Parties] and do not, as such, have direct horizontal effect as a matter of international law." General Comment No. 31: The Nature of the General Legal Obligation, supra note 192, 'I[ 8. Although not permitted by the individual communications system, there have been proposals for an international human rights court, which could permit horizontal complaints. See Manfred Nowak, The Need for a World Court of Human Rights, 7 HUM. RTS. L. REv. 251 (2007). 203. Violence against Women, supra note 194, 'I[ 10. 204. CEDAW, supra note 14, art. 2. CEDAW, id. art. S{a) further provides: "States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women." Article IO(c)

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provides that States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

The inclusion of civil, political, economic, social, and cultural rights in a single treaty places the Women's Committee in a better position than the other committees to tackle, in a holistic manner, structural aspects of violence against women, such as poverty and socio-economic disadvantage. Despite no explicit provisions equivalent to those in CEDA W, both the HRC and the CESCR have, nonetheless, also referred to tradition, history, religion, and culture as the basis of inequality. 205 In Lovelace v. Canada, for example, it was confirmed by the HRC that the protection of culture cannot be used to justify discrimination against women on the basis of sex. 206 In this case, the HRC found that Canada discriminated against the applicant on the basis of sex by taking away her indigenous status under domestic legislation when she married a nonindigenous man. Under the same legislation, a man would not have lost his status by marrying a non-indigenous woman. The HRC held that there was no reasonable justification for the domestic legislation applying to the complainant's particular situation, having divorced her non-indigenous

provides: "States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women: .... (c) The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods." Id. art. 10. 205. See General Comment No. 28: Equality of Rights, supra note 190, ,i 5; U.N. Econ. & Soc. Council (ECOSOC), Sub-Comm. on Economic, Social & Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Zambia, ,i 14, U.N. Doc. E/C.12/1/Add.106 (June 23, 2005); U.N. Econ. & Soc. Council (ECOSOC), Sub-Comm. on Economic, Social & Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Chile, ,i 15, U.N. Doc. E/C.12/1/Add.105 (Nov. 26, 2004) [hereinafter Chile]; U.N. Econ. & Soc. Council (ECOSOC), Sub-Comm. on Economic, Social & Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Malta, ,i 11, U.N. Doc. E/C.12/1/Add.l0I (Dec. 14, 2004); U.N. Econ. & Soc. Council (ECOSOC), Sub-Comm. on Economic, Social & Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Benin, ,i 8, U.N. Doc. E/C.12/1/Add.78 (June 5, 2002). 206. U.N. Human Rights Comm., Sandra Lovelace v. Canada, U.N. Doc. CCPR/C/13/D/24/1977(Dec. 29, 1977).

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husband. 207 Issues of culture and religion have not been without controversy, including within feminism. This case could easily have been differently decided, however, as one of the arguments for the legislation in the first place was the preservation of culture protected by Article 27 of the ICCPR. In fact, the Canadian Supreme Court rejected Lovelace's claim, stating that her exclusion from the community was reasonable in light of the aim of the legislation and, therefore, it was not discrimination. 208 This reveals the difficulty of applying the sameness/difference model allowing reasonable excuses. The treaty bodies have, however, had difficulties identifying structural causes of inequality. In the case of Munoz-Vargas y Sainz de Vicuna v. Spain, in which the complainant argued that as the first-born daughter of Enrique Munoz-Vargas y Herreros de Tejada, who held the nobility title of "Count of Bulnes," she should succeed to that title. 209 Instead, Spanish law maintained that the first-born daughter would only succeed if she had no younger brothers. Upon the death of her father, the complainant's younger brother succeeded to the title. She alleged that male primacy in the order of succession lo titles of nobility constituted a violation of the CEDA W. The application was declared inadmissible on two grounds, one of which is of relevance here. 210 Eight members of the Women's Committee adopted a concurring opinion in which they stated: It is undisputed in the present case that the title of nobility in question is of a purely symbolic and honorific nature, devoid of any legal or material effect. Consequently, we consider that claims of succession to such titles of nobility are not compatible with the provision of the Convention, which are aimed at protecting women from discrimination which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise of women on a basis of equality of men and women, of human rights and fundamental freedoms in all fields. 211

The same view was expressed by the HRC in two similar cases. 212 207. Id. 208. Attorney-General of Canada v. Lavell, Isaac v. Bedard, [1974] S.C.R. 1349. 209. U.N. Comm. on the Elimination of Discrimination against Women, Munoz-Vargas y Sainz de Vicuna v. Spain, U.N. Doc. CEDAW/C/39/D/7/2005 (Aug. 9, 2007) [hereinafter Munoz-Vargas y Sainz de Vicuna v. Spain). 2 I 0. The other ground of inadmissibility was that it involved an issue that had been resolved prior to the entry into force of the CEDA W on the state party, which was also disputed by the single dissenting judge (Dairiam). Munoz-Vargas y Sainz de Vicuna v. Spain, id. 211. Munoz-Vargas y Sainz de Vicuna v. Spain, supra note 209, ,i 12.2 (concurring opinion of Dominquez, Flinterman, Patten, Pimentel, Saiga, Simms, Tan and Zou). 212. See U.N. Hum. Rts. Comm., Hoyos Martinez de irujo v. Spain, U.N. Doc. CCPR/C/80/D/1008/2001 (June 15, 2004); U.N. Hum. Rts. Comm., Barcaiztegui v. Spain, U.N. Doc. CCPR/C/80/D/1019/2001 (June 15, 2004).

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While recogmzmg that "benign" titles of nobility are not generally compatible with ideals of equality, human rights, or democratic governance, a literal reading of the text of the CEDA W nonetheless appears to trump general discontent with viewing titles of nobility as a human rights issue over the issue of inequality, especially equal access. In dissent, Shanthi Dairiam invoked Article 5(a) of the CEDA W and reoriented the issue in the communication around "the negative effects of conduct [or laws] based on culture, custom, tradition and the ascription of stereotypical roles that entrench the inferiority of women." 213 She noted that when Spanish law, enforced by Spanish courts, provides for exceptions to the constitutional guarantee for equality on the basis of history or the perceived immaterial consequence of a differential treatment, it is a violation, in principle, of women's right to equality. Such exceptions serve to subvert social progress towards the elimination of discrimination against women using the very legal processes meant to bring about this progress, reinforce male superiority and maintain the status quo. This should neither be tolerated nor condoned on the basis of culture and history. Such attempts do not recognize the inalienable right to non-discrimination on the basis of sex which is a stand-alone right. If this is not recognized in principle regardless of its material consequences, it serves to maintain an ideology and a norm entrenching the inferiority of women that could lead to the denial of other rights that are much more substantive and material. 214 agree with Dairiam that inequality should not be tolerated in any situation, and the very fact that inequality exists should characterize it as a human rights issue. Titles of nobility and other titular awards, however antithetical to human rights and fundamental freedoms, must be granted on the basis of equality until they are fully dismantled, as they are part of the very fabric and foundations of society, and their retention in unequal forms reinforces a society built on inequality. At a minimum, the right to equal treatment before the law should have been at issue as Spanish law endorsed the passage of lineage through the male line. The Committee members failed to engage in "feminist contextual reasoning" in this case. 215 Had they done so, they would have realized that such titles are not "devoid of 213. Muiioz-Vargas y Sainz de Vicuiia v. Spain, supra note 209, ,I 13.9 (dissenting opinion ofDairiam). 214. Id. ,I 13.7. 215. On "feminist contextual reasoning," see Katharine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV 829 (1990).

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any legal or material effect" but in fact reinforce a social system that posits men as superior to women. Conceptualizing inequality as an issue of social justice or around the concepts of oppression/domination, advantage/disadvantage, or hierarchy may have helped the majority of the Women's Committee to arrive at a different result as social titles, transferred through sex, are based on a social and power hierarchy that posits men above women. Under this hierarchy, men are the beneficiaries of privilege, not women. (e)

Multiple discrimination

The intersection of sex and other identity-based attributes has been recognized by many of the treaty bodies. The committees have recognized the intersection of sex and other forms of discrimination on the grounds of color, language, religion, political and other opinion, national or social origin, property, birth, or other status, such as age, ethnicity, disability, marital, refugee, or migrant status. 216 Of all the treaty bodies, the CERD has dealt with this issue most holistically. In 2000, the CERD issued a General Recommendation on the gender-related dimensions of racial discrimination. It noted that racial discrimination does not always affect women and men equally or in the same way. 217 It recognized, for example, that certain forms of racial discrimination may be directed towards women specifically because of their sex, such as sexual violence committed against women members of particular racial or ethnic groups in detention or during 216. See, e.g., U.N. Econ. & Soc. Council (ECOSOC), Sub-Comm. on Economic, Social & Cultural Rights, General Comment No. 3: The Nature of States Parties Obligations, 'II 5, in Committee on Economic, Social & Cultural Rights: Report on the 5th Session, U.N. Doc. E/1991/23 (Dec. 14, 1990); U.N. Econ. & Soc. Council (ECOSOC), Sub-Comm. on Economic, Social & Cultural Rights, General Comment No. 5: Persons with Disabilities, '11'11 19, 31 (Dec. 9, 1994), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 (May 12, 2003); U.N. Comm. on the Elimination of Discrimination against Women, General Recommendation No. 18: Disabled Women (Jan. 4, 1991), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.7 (May 12, 2004); U.N. Comm. on the Elimination of Discrimination against Women, Concluding Observations of the Committee: Sweden, 'II 334 (July 20, 2001), in Report of the Committee on the Elimination of Discrimination against Women: Twenty-:fifth Session, U.N. Doc. A/56/38 (calling on governments to adopt legislation for residence permits for individuals who have a wellfounded fear of being persecuted on the basis of gender/sex, particularly in cases of discrimination against women); U.N. Comm. on the Rights of the Child, General Comment No. 7: Implementing Child Rights in Early Childhood, 'I! I I, U.N. Doc. CRC/C/GC/7/Rev.l (Sept. 20, 2006); U.N. Comm. on the Rights of the Child, General Comment No. 9: The Rights o/Children with Disabilities, 'I] 10, U.N. Doc. CRC/C/GC/9 (Feb. 27, 2007). See also V ANDENHOLE, supra note 171, at 443-46. 217. Gender-Related Dimensions of Racial Discrimination, supra note 127, 'II I.

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armed conflict; the coerced sterilization of indigenous women; or the abuse of women workers by their employers in the informal or domestic sectors. 218 It further acknowledged that the consequences of racially motivated violence, such as social ostracism for victims of rape or pregnancy and birth of children born of rape, may be different for women and men. Furthermore, women may have greater difficulties accessing remedies and complaint mechanisms for racial discrimination because of gender-related impediments, such as gender bias in the legal system and discrimination against women in private spheres of life. 219 The CERD called upon state parties to describe, as far as possible in quantitative and qualitative terms, factors affecting and difficulties experienced in ensuring the equal enjoyment by women, free from racial discrimination, of rights under the Convention. 220 Again in 2000, the CERD issued a General Recommendation relating to discrimination against Roma, noting that Roma women are often victims of double discrimination. 221 Its prior position, however, indicates that CERD had yet to grasp the intersection of race and sex. In Yilmaz-Dogan v. The Netherlands, the CERD did not address the question of discrimination based on gender stereotypes when an employer sought to terminate the employment of a Turkish woman who was pregnant: When a Netherlands girl marries and has a baby, she stops working. Our foreign women workers, on the other hand, take the child to neighbours or family and at the slightest setback disappear on sick leave under the terms of the Sickness Act. They repeat that endlessly. . . . [W]e cannot afford such goings-

on. 222 Likewise, in a case before the Women's Committee involving the coerced sterilization of a Hungarian woman of Roma ethnicity during an emergency operation to remove her dead fetus, the Women's Committee did not comment upon the impact the woman's ethnicity may have had on her treatment by the state. 223 This was in spite of well-documented reports at the time that discrimination against Roma was (and remains) one of the

218. id.,J2. 219. Id. 220. Id. ,i 7. 221. U.N. Comm. on the Elimination of Racial Discrimination, General Recommendation XXVII: Discrimination against Roma, ,i 6 (Aug. 16, 2000), in Report of the Comm. on the Elimination of Racial Discrimination: Fifty-seventh Session, U.N. Doc. Af55/18, Annex V (Oct. 1, 2000). 222. U.N. Comm. on the Elimination of Racial Discrimination, Yi/maz-Dogan v. The Netherlands, U.N. Doc. CERD/C/36/D/1/1984 (Sept. 29, 1988). 223. U.N. Comm. on the Elimination of Discrimination against Women, A.S. v. Hungary, U.N. Doc. CEDA W/C/36/D/4/2004 (Aug. 29, 2006).

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main human rights concerns in Hungary. 224 It was also in spite of the state party raising irrelevant considerations in its defense such as the complainant's inability to pay for health care. Issues such as the language (Latin) used on the consent fonn, the manner of explanation of the sterilization procedure, the speed with which the decision to sterilize her was taken (within seventeen minutes from admission to the termination of the surgery), and the assumptions made about her former knowledge about family planning, were taken for granted by the state party. In a supplementary submission, the complainant recalled "her extremely vulnerable situation when she sought medical attention ... as a woman who would lose her child and as a member of a marginalized group of society-the Roma." 225 No comment was made in relation to this by the state party or by the Committee in its Views on the issue. This case demonstrates a failure to deal with the interplay between gender and ethnicity. 4.

Equality law and the U.N. treaty bodies: interim findings

International instruments and jurisprudence on equality have faced considerable scrutiny by feminist scholarship as outlined in this article. Many of these critiques are still applicable. The dominant paradigm of equality employed by the human rights treaty bodies remains centered around sameness and difference. This is driven by an emphasis on nondiscrimination, rather than equality. The standard for achievement of equality is the male sex. Put another way, it calls for a female to male progression; that is, men are the standard against which all individuals are judged under international law. It reinforces a hierarchy in which men are above women. Inequality under this paradigm is when women are not treated the same as men; special treatment is only allowed as far as it will lead to their eventual identical position as men. The majority of the case law on equality, as outlined above, has been brought by women alleging, for example, facially unequal treatment compared with men in a similar,

224. See, e.g., U.N. Comm. on the Elimination of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Hungary, U.N. Doc. CERD/C/61/CO/6 (Aug. 23, 2002); U.N. Human Rights Comm., Concluding Observations of the Human Rights Commiuee: Hungary, U.N. Doc. CCPR/CO/74/HUN (Apr. 19, 2002); U.N. Comm. on the Elimination of Discrimination against Women, Concluding Comments of the Committee: Hungary (Feb. 2, 1996), in Report of the Committee on the Elimination of Discrimination against Women: Fijieenth Session, U.N. Doc. NSl/38; U.N. Comm. on the Elimination of Discrimination against Women, Concluding Comments of the Committee: Hungary, in Report of the Committee on the Elimination of Discrimination against Women: Exceptional Session, U.N. Doc. N57/38(SUPP) (Aug. 23, 2002). 225. A.S. v. Hungary, supra note 223, ~ 9.4.

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comparable, or identical situation. Occasionally men have brought complaints along the same lines. 226 Structural inequality has not been readily apparent, or always addressed, by the treaty bodies. On the positive side of the ledger, discriminatory intent seems to have been set aside permanently as an irrelevancy, with focus instead on the effect of any measure, law, or action on women. However, the impact of such laws or actions has not always been fully comprehended, as shown in Vos and Munoz-Vargas y Sainz de Vicuna v. Spain. Any distinctions between the treatment of men and women under the sameness/difference paradigm are to be justified according to criteria of "reasonableness" and "objectivity." Reasonableness is also used in international law in the context of assessing whether a state has fulfilled its obligations under the due diligence standard. Under this standard, a state is required to take reasonable steps to prevent acts of violence. Reliance on standards such as reasonableness has proven problematic as they are regularly tied to masculinity and thereby risk biased interpretations. Feminist scholars have argued that there is no such thing as an objective or reasonable standard as it gives rise to questions such as: Who decides? And by whose standard of reasonableness and objectivity is one being judged? In the area of tort law, for example, the "reasonable person" standard has been criticized for being premised on the behavior of the "reasonable man" rather than the "reasonable person," 227 with some suggesting that the shift in language from "man" to "person" as being "no more than cosmetic." 228 Drucilla Cornell has argued, "Reasonableness is not natural and objective but rather socially and politically constructed through the identification of this supposedly neutral concept with masculinity." 229 It is not clear why a "reasonable state" standard would fare any better. Only the Women's Committee has rejected what could be labeled the 226. See. e.g., Vos v. The Netherlands, supra note 167 (finding discrimination on the basis of sex in situations where married men were required to reach a greater age than married women to be entitled to a pension). 227. MAYO MORAN, RETHINKING THE REASONABLE PERSON: AN EGALITARIAN RECONSTRUCTION OF THE OBJECTIVE STANDARD 199 (Oxford Univ. Press 2003). 228. See, e.g., Leslie Bender, A Lawyer's Primer on Feminist Theory and Tort, 38 J. LEGAL EDUC. 3 (1988); Lucinda M. Finley, A Break in the Silence: Including Women's Issues in a Torts Course, 1 YALE J.L. & FEMINISM 41 (1989); Naomi R. Cahn, The Looseness of legal language: The Reasonable Woman Standard in Theory and in Practice, 77 CORNELL L. REV. 1398 (1992); Robyn Martin, A Feminist View of the Reasonable Man: An Alternative Approach to Liability in Negligence for Personal Injury, 23 ANGLO-AM. L. REV. 334 (1994). On the power of language, see also DALE SPENDER, MAN MADE LANGUAGE (Pandora 200 I). 229. Drucilla Cornell, living Together: Psychic Spaces and the Demand for Sexual Equality, in CONTINENTAL FEMINISM READER 196, 206 (Ann J. Cahill & Jennifer Hansen eds., Rowman & Littlefield 2003).

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"reasonable excuse" approach (except in relation to temporary special measures), while the CERD has offered a more nuanced version. In other words, what is prohibited is "arbitrary" discrimination rather than discrimination per se. This was in fact the intention of the drafters of some of the instruments. 230 The focus on discrimination, however, overemphasizes differences between men and women and gives space for irrelevant biological arguments to justify oppressive practices. It seems time for the committees to indicate that there are limited biological differences that are relevant to justifying any difference in treatment. These might be restricted to reproduction, childbirth, pregnancy, and preand post-natal issues, and even then, these factors can justify the introduction of positive measures to bring about equality but cannot justify differences in treatment otherwise. On the contrary, gendered social and cultural patterns of the roles and responsibilities assigned to women and the economic and political inequalities between men and women justify introducing special measures in order to bring about equality writ large. This is at the heart of the sex/gender distinction, and the difficulties therein. Overall, the principles of equality and non-discrimination on the basis of sex remain contested and the case law is mixed. There is inconsistency within committees and between committees. While the committees tend to speak the rhetoric of multiple discrimination, they have proven largely unable to identify the range of identity-based factors at issue, or to assess their impact, in their case law. Distinctions still seem to be made between race and sex discrimination, reinforcing a hierarchical system that posits race above sex. Any distinctions between sex discrimination and inequality also remain unclear. Whether the terms are synonyms or qualitatively different is "inconclusive." 231 Underlying social, political, and economic disparities within society structured around sex tend to be minimized in the framework of discrimination that prioritizes individuals or individual issues rather than equality, which bears a broader ambit. Of course, it must be conceded to some degree that the nature of individual communications distorts this view in that direction. By and large, the treaty bodies have accepted few of the state party excuses for unfair distinctions in law or practice between women and men although there have been serious slippages with taking into account irrelevant considerations, such as administrative convenience. There also has been rhetorical acceptance of direct and indirect forms of discrimination although the committees have not always addressed both aspects in individual cases. The committees have further tended to 230. McKEAN, supra note 59, at 186 (pointing out that the Declaration on the Elimination of Discrimination against Women 1967, U.N. Doc. AfRES/48/104 (Dec. 20, 1993), the predecessor to the CEDA W, was based on this premise). 231. V ANDENHOLE, supra note 171, at 34.

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disregard structural causes of inequality in their case law, which can mean they are assessing the particular case in isolation of its social and cultural context. The practice of the Women's Committee of including general recommendations directed at the state party at the end of an individual communication, however, has highlighted that inequality requires structurally based solutions. The CERD has tended to perform better in its assessments of what constitutes discrimination by looking at the differential impact it will bear on the group as a whole; meanwhile, the CESCR has used language of inherent disadvantage, albeit still confined within a sameness/difference model. Overall, international human rights law continues to struggle in its handling of these fundamental concepts. The first half of this article has highlighted the hazards inherent in an equality law framed around sameness and difference. So what if an alternative vision of equality was adopted by the treaty bodies? A broader analysis that locates the individual woman within her lived context of group disadvantage, under-representation, and limited or lack of political or economic power would require asking deeper questions about the work that gender is doing in her life and what needs to be done to ensure that, in the words of Judge Tanaka of the PCIJ, she is recognized as having "an equal value in [herselt]." 232 It would go further than simply permitting her to participate in the institutions or processes from which she was excluded or to gain access to benefits that have been denied, unless reasonable excuses for such denials could satisfy the decision-maker. If nothing else, a reconceptualization would untie women from needing to compare themselves to the norm of men. The remainder of this article considers the approach developed by the Women's Committee and adopted by several of the other treaty bodies of treating violence against women as a form of sex discrimination. I first outline what the approach entails before exploring what it means for women victims of violence. Has it fared any better than in relation to general issues of inequality outlined above? Is it a satisfactory approach to the omission of an explicit prohibition on violence against women in international law? E.

VIOLENCE AGAINST WOMEN AS SEX DISCRIMINATION

1.

Violence against women

= sex discrimination

In 1989, the Women's Committee issued its first General Recommendation on violence against women. It cited Articles 2, 5, I I, 12, and 16 of the CEDA W as imposing obligations upon states to protect

232. Minority Schools in Albania, supra note 69, at 19.

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women against violence of any kind occurring within the family, at the workplace, or in any other area of social life. 233 Elaborating upon its earlier position, the Women's Committee adopted a more comprehensive Recommendation in 1992 in which it dealt with individual treaty provisions and links between sex discrimination and violence against women. 234 The Women's Committee was particularly concerned that, in spite of its 1989 General Recommendation, not all state party reports adequately reflected the close connection between discrimination against women, gender-based violence, and violations of human rights and fundamental freedoms. 235 The General Recommendation emerged at a time when heightened focus was being placed on violence against women within the U.N. system. The 1985 Nairobi Forward-looking Strategies for the Advancement of Women outlined a set of measures to combat violence against women, 236 but their implementation proved problematic. In 1991, the Economic and Social Council (ECOSOC) recommended that a framework for an international instrument be developed that would explicitly address this issue. 237 Debate ensued at that time over whether a new instrument was the way forward. These arguments included that an entirely new instrument could create confusion over the relevance of existing human rights instruments, the risk of limited ratification, and the expense of implementation. 238 Furthermore, any new instrument would open up controversial debate on how to define such violence. The alternative strategy included the drafting of a Declaration, which was adopted in 1994, as well as a General Recommendation of the Women's Committee. 239 The 1992 General Recommendation that ensued declared that "[g]ender-based violence is a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with

233. U.N. Comm. on the Elimination of Discrimination against Women, General Recommendation No. 12: Violence against Women (Mar. 6, 1989), reprinted in Compilation of Genera{ Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.7 (May 12, 2004). 234. Violence against Women, supra note 194. 235. id. ,r 4. 236. U.N., REPORT OF THE WORLD CONFERENCE TO REVIEW AND APPRAISE THE ACHIEVEMENTS OF THE UNITED NATIONS DECADE FOR WOMEN: EQUALITY, DEVELOPMENT AND PEACE, ch. I, Sales No. E.85.IV.IO (1985); See also The Secretary-General, Efforts to Eradicate Violence against Women within Society and the Family, U.N. Doc. E/CN.6/1988/6 (Dec. 30, 1987). 237. ECOSCO Res. 1991/18 (May 30, 1991). 238. Joan Fitzpatrick, The Use of International Human Rights Norms to Combat Violence Against Women, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVE supra note 49, at 538. 239. The Secretary-General, Report of the Secretary-General: Violence Against Women in all its Forms, ,r,r 25-27, U.N. Doc. E/CN.6/1992/4 (Dec. 6, 1991), as referred to supra note 236, at 532.

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men." 240 In other words, the Women's Committee developed a formula equating violence against women (VA W) with sex discrimination (SD), namely: VA W=SD. It stated that the definition of "discrimination" in Article I of the CEDA W "includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty." 241 Clarifying its approach, the Committee stated: "[g]ender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of article 1 of the Convention." 242 In particular, the Committee held that "[g]ender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence." 243 In many ways, the development of the VA W=SD formula transformed the CEDA W from an anti-discrimination treaty into a gender-based violence treaty. Not only was equality seen as a foundational principle of the CEDA W, the Women's Committee argued that gender-related violence should be one as well. The two issues are inseparable, and both limit and restrict women's enjoyment of all other human rights. In its 1992 General Recommendation, the Women's Committee further drew a link between custom and tradition and violence. The General Recommendation provided that "[t]raditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision." 244 The Committee further stated that "[s]uch prejudices and practices may justify gender-based violence as a form of protection or control of women" and may contribute to the maintenance of women in subordinate roles, their low level of political participation, and low levels of education, skills, and work opportunities. 245 ln other words, "[t]he effect of such violence on the physical and mental integrity of women is to deprive them of the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms." 246 Moreover, the Committee

Violence against Women, supra note 194, ,i I. Id. ,i 6. Id. ,i 7. Id. ,i 6. 244. Id. ,i 11. 245. Id. 246. Id.

240. 241. 242. 243.

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asserted that "[t]hese attitudes also contribute to the propagation of pornography and the depiction and other commercial exploitation of women as sexual objects, rather than as individuals. This in tum contributes to gender-based violence. " 247 Adopting a near identical approach to the Women's Committee, the CESCR stated in 2004 that [g]ender based violence is a form of discrimination that inhibits the ability to enjoy rights and freedoms, including economic, social and cultural rights, on a basis of equality. States parties must take appropriate measures to eliminate violence against men and women and act with due diligence to prevent, investigate, mediate, punish and redress acts of violence against them by private actors. 248

The approach of the HRC has been similar but less direct in its linkages between sex discrimination and violence against women. ln 2000, the HRC stated that Article 3 of the ICCPR, which implies that all human beings should enjoy the rights provided for in the Covenant on an equal basis and in their totality, is impaired whenever any person is denied the full and equal enjoyment of any right. 249 From the catalogue of forms of violence outlined in the General Comment as being of relevance to Article 3 and other provisions (see below), it is clear that the HRC considered that violence against women impairs women's entitlement to enjoy ICCPR rights in equality and in totality. But it is not clear that the HRC considers violence against women to be a form of sex discrimination per se, along the lines of the Women's Committee, without additional considerations. In contrast to the CEDA W, the ICERD contains an explicit prohibition against racially-motivated violence. 250 As noted above, the CERD has recognized that certain forms of racial discrimination may be directed towards women specifically because of gender. 251 So what have been the consequences of the VA W=SD formula for women?

2.

Assessing the VA W=SD formula

Characterizing violence against women as sex discrimination has filled an important gap in international human rights law, namely the absence of an explicit binding prohibition on violence against women. 247. 248. 27. 249. 250. 251.

Id. ,i 12. General Comment No. 16: The Equal Right of Men and Women, supra note 121, ,i General Comment No. 28: Equality of Rights, supra note 190, ,i 2. ICERD, supra note 14, art. 4. Gender-Related Dimensions of Racial Discrimination, supra note 127, ,i 2.

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However, it also carries its own set of problems for women, which makes it at best a stop-gap measure. (a)

Benefits of the VA W=SD formula

The first, and most obvious, advantage of the VA W=SD formula is that had it not been developed, the U.N. treaty bodies would be constrained in their treatment of violence against women. In much the same way as MacKinnon's work on sexual harassment, in which she argued that sexual harassment is sex discrimination in order to locate a legal cause of action before U.S. courts, the Women's Committee's approach is a pragmatic response to a gap in the law. 252 Prior to the 1992 General Recommendation, violence against women as a specific issue was not given official attention by the U.N. treaty bodies. Under the formula, the Women's Committee has addressed a wide range of issues of violence against women, such as sexual violence, including gang rape and marital rape, domestic violence, physical violence, sexual harassment, and pornography. 253 The Committee has identified 252. See generally CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION (Yale Univ. Press 1979), taken up in Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). 253. See, e.g., U.N. Comm. on the Elimination of Discrimination against Women, Concluding Comments of the Commiltee: Netherlands, ,r 274 (Feb. 4, 1994), in Report of the Committee on the Elimination of Discrimination against Women: Thirteenth Session, U.N. Doc. A/49/38 (Apr. 12, 1994) [hereinafter Netherlands] (The Netherlands' delegate disputed that the legality of pornography had led to the increase in sexual violence); U.N. Comm. on the Elimination of Discrimination against Women, Japan, ,r 577, in Report of the Committee on the Elimination of Discrimination against Women: Thirteenth Session, U.N. Doc. A/49/38 (Apr. 12, 1994); U.N. Comm. on the Elimination of Discrimination against Women, Concluding Observations of the Committee on the Elimination of Discrimination Against Women: South Africa, ,r 104 (July 10, 1998), in Report of the Committee on the Elimination of Discrimination against Women: Nineteenth Session, U.N. Doc. A/53/38/Rev.l; U.N. Comm. on the Elimination of Discrimination against Women, Concluding Observations of the Committee: Algeria, ,r 79 (Jan. 26, 1999), in Report of the Committee on the Elimination of Discrimination against Women: Twentieth Session, U.N. Doc. A/54/38/Rev.1 (Feb. 5, 1999); U.N. Comm. on the Elimination of Discrimination against Women, Concluding Observations of the Committee: Kyrgyzstan, ,r 122 (Jan. 27, 1998), in Report of the Committee on the Elimination of Discrimination against Women: Twentieth Session, U.N. Doc. A/54/38/Rev.l (Feb. 5, 1999); U.N. Comm. on the Elimination of Discrimination against Women, Concluding Observations of the Committee: India, ,r 68 (Jan. 31, 2000), in Report of the Committee on the Elimination of Discrimination against Women: Twenty-second Session, U.N. Doc. A/55/38 (Feb. 4, 2000) [hereinafter India]; U.N. Comm. on the Elimination of Discrimination against Women, Concluding Observations of the Committee: Democratic Republic of Congo, ,r 202 (Jan. 31, 2000), in

Report of the Committee on the Elimination of Discrimination against Women: Twentysecond Session, U.N. Doc. Af55/38 (Feb. 4, 2000); U.N. Comm. on the Elimination of Discrimination against Women, Concluding Observations of the Committee: Burkina Faso, ,r 270 (Jan. 27, 2000), in Report of the Committee on the Elimination of Discrimination

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measures to eliminate violence against women, including criminalization; awareness-raising and education; training of police, judicial and other personnel; national action plans; and assistance to victims in the form of crisis centers, hotlines, legal, medical, psychological and emotional support, socio-economic integration measures, and effective remedies. 254 Sexual harassment in tlie workplace has also been identified as an issue of equality by the Women's Committee, noting that "[e]quality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment, in the workplace." 255 It has also driven other committees to take up the issue of violence against women within an inequality paradigm. For example, the CESCR has made references to lack of legislation outlawing sexual harassment in many states 256 and has linked the right to family life and inequality in the context of domestic violence, forced marriage, and gender-based violence generally. 257 The CESCR has further raised concern regarding family laws that provide an obligation upon a wife to obey her husband, 258 polygamy, 259 unilateral divorce by husbands, 260 more severe punishment against Women: Twenty-second Session, U.N. Doc. N55/38 (Feb. 4, 2000); U.N. Comm. on the Elimination of Discrimination against Women, Concluding Observations of the Committee: Finland, ,i 301 (Jan. 22, 2001), in Report of the Committee on the Elimination of Discrimination against Women: Twenty-fourth Session, U.N. Doc. A/56/38 (Feb. 2, 2001 ); U.N. Comm. on the Elimination of Discrimination against Women, Concluding Observations of the Committee: Nicaragua, ,i 292 (July 17, 2001), in Report of the Committee on the Elimination of Discrimination against Women: Twenty-fzfih Session, U.N. Doc. N56/38 (July 20, 2001); U.N. Comm. on the Elimination of Discrimination against Women, Concluding Observations of the Committee: Trinidad and Tobago, ,i 145 (Jan. 29, 2002), in Report of the Committee on !he Elimination of Discriminalion againsl Women: Twenly-sixth Session, U.N. Doc. N57/38 (Feb. I, 2002); U.N. Comm. on the Elimination of Discrimination against Women, 56th Sess., 24th mtg. at ,i 225, U.N. Doc. N56/38 (Apr. 20, 2001); U.N. Comm. on the Elimination of Discrimination against Women, 58th Sess., 28th mtg. at ,i 112, U.N. Doc. N58/38 (Mar. 21, 2003); U.N. Comm. on the Elimination of Discrimination against Women, 59th Sess., 30th mtg. at ,i 78, U.N. Doc. N59l30 (Mar. 18, 2004); U.N. Comm. on the Elimination of Discrimination against Women, 60th Sess., 32nd mtg. at ,i 29, U.N. Doc. N60/38 (Mar. 18, 2005); U.N. Comm. on the Elimination of Discrimination against Women, 61st Sess., 36th mtg. at ,i 33, U.N. Doc. N61/38 (Aug. 25, 2006); U.N. Comm. on the Elimination of Discrimination against Women, 61st Sess., 36th mtg. at ,i 33, U.N. Doc. N61/38 (Aug. 25, 2006). 254. VANDENHOLE, supra note 171, at 152-53 (referring to a range of Concluding Observations on state party reports). 255. Violence against Women, supra note 194, ,i,i 17, 18. 256. Chile, supra note 205, ,i 21. 257. General Comment No. I 6: The Equal Right of Men and Women, supra note 121, ,r 27. 258. U.N. Econ. & Soc. Council (ECOSOC), Sub-Comm. On Economic, Social & Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Algeria. ,i 14, U.N. Doc. E/C.12/1/Add.71 (Nov. 30, 2001) [hereinafter Algeria]. 259. Id.

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for adultery imposed upon women, 261 and "honor" crimes. 262 The HRC has similarly linked inequality between women and men and violence with a range of ICCPR rights, including in relation to female genital mutilation, 263 pledging of girls for economic gain, 264 detention of women rejected by their families, 265 domestic violence, 266 lack of rape prosecutions 267 or exemption from prosecution if marriage follows rape, 268 260. Id. 261. U.N. Econ & Soc. Council (ECOSOC), Sub-Comm. On Economic, Social & Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Syrian Arab Republic, ,i 31, U.N. Doc. E/C.12/1/Add.63 (Sept. 24, 2001) [hereinafter Syrian Arab Republic). 262. Id. iJ 3 l. 263. See, e.g.. U.N. Int'l Covenant on Civil & Political Rights, Sub-Comm. On Human Rights, Concluding Observations of the Human Rights Committee: Kenya, ,i 12, U.N. Doc. CCPR/C0/83/KEN (Apr. 29, 2005); Benin, U.N. Doc. CCPR/C0/82/BEN, iJ l I; U.N. lnt'l Covenant on Civil & Political Rights, Comments by the Government of Mali on the concluding observations of the Human Rights Committee, ,i l I, U.N. Doc. CCPR/C0/77/MLI/Add. I (Nov. 30, 2007); U.N. lnt'I Covenant on Civil & Political Rights, Sub-Comm. on Human Rights, Concluding Observations of the Human Rights Committee: Yemen, ,i 6, U.N. Doc. CCPR/C0/75NEM (Aug. 12, 2002) [hereinafter Yemen]; U.N. Int'! Covenant on Civil & Political Rights, Sub-Comm. on Human Rights, Concluding Observations of the Human Rights Committee: Zimbabwe, ,i 12, U.N. Doc. CCPR/C/79/Add.89 (Apr. 6, 1998) [hereinafter Zimbabwe]; U.N. Comm. on the Elimination of Discrimination against Women, 59th Sess, 30th mtg., ,i 276, U.N. Doc. A/59/38 (Mar. I 8, 2004). 264. Zimbabwe, supra note 263, ,i 12. 265. See, e.g., Yemen, supra note 263, ,i 12. 266. See, e.g., U.N. Int') Covenant on Civil & Political Rights, Sub-Comm. on Human Rights, Concluding Observations of the Human Rights Committee: Mauritius, ii IO, U.N. Doc. CCPR/C0/83/MUS (Apr. 27, 2005); U.N. International Covenant on Civil & Political Rights, Sub-Comm. On Human Rights, Concluding Observations of the Human Rights Committee: Uzbekistan, ,i 23, U.N. Doc. CCPR/C0/83/UZB (Apr. 26, 2005); Yemen, supra note 251, ,i 6; U.N. Int'! Covenant on Civil & Political Rights, Sub-Comm. on Human Rights, Concluding Observations of the Human Rights Committee: Albania, ,i IO, U.N. Doc. CCPR/C0/82/ALB (Dec. 2, 2004) (hereinafter Albania]; U.N. Int'I Covenant on Civil & Political Rights, Sub-Comm. on Human Rights, Concluding Observations of the Human Rights Committee: Poland, iJ I I, U.N. Doc. CCPR/C0/82/POL (Dec. 2, 2004); U.N. lnt'l Covenant on Civil & Political Rights, Sub-Comm. on Human Rights, Concluding Observations of the Human Rights Committee: Morocco, ,i 28, U.N. Doc. CCPR/C0/82/MAR (Dec. I, 2004); U.N. lnt'l Covenant on Civil & Political Rights, SubComm. on Human Rights, Concluding Observations of the Human Rights Committee: Iceland, ,i I I, U.N. Doc. CCPR/C0/83/lSL (Apr. 25, 2005) [hereinafter Iceland]. 267. See, e.g., Iceland, supra note 266, "ii 11. 268. See. e.g., U.N. Int'! Covenant on Civil & Political Rights, Sub-Comm. on Human Rights, Concluding Observations of the Human Rights Committee: Egypt, ,i 9, U.N. Doc. CCPR/C0/76/EGY (Nov. 28, 2002); U.N. Human Rights Comm., Consideration of Reports

Submitted by States Parties under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Venezuela, 1 20, U.N. Doc. CCPR/C0/70/VEN (Apr. 26, 2001); U.N. Human Rights Comm., Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Mongolia,~ 8, U.N. Doc. CCPR/C/79/Add.120 (Apr. 25, 2000); U.N. Human

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sexual exploitation of foreign women, 269 and trafficking in women. 270 But a discrimination lens has not always been centre stage. With a wider range of provisions to choose from, the HRC has, for example, preferred to characterize fonns of violence against women as torture 271 while the CESCR has tended to consider violence as an issue related to women's health. 272 There are advantages and disadvantages to these approaches too, but it is beyond the scope of this article to deal with them here. The analysis of the Women's Committee, however, was undoubtedly a catalyst to the acceptance that violence against women is a human rights concern across the treaty bodies. The second advantage of the formula is not only that the Women's Committee is now able to address violence against women per se, but it can do so in a broad way that encompasses structural causes of inequality and violence. That is, there has been a "conceptual breakthrough." 273 Violence against women is recognized as a "group-based harm, a practice of social inequality carried out on an individual level." 274 Violence against women Rights Comm., Concluding observations of the Human Rights Cammi/lee: United Republic of Tanzania, ,J 11 & 15, U.N. Doc. CCPR/C/79/Add.97 (Aug. 18, 1998); U.N. Human Rights Comm., Consideration of Reports Submitted by States Parties under Article 40 of the Human Rights Cammi/lee: Lebanon, ,J18-19, U.N. Doc. CCPR/C/79/Add.78 (May 5, 1997). 269. See, e.g., Netherlands, supra note 253, ,i 10. 270. See, e.g., U.N. Human Rights Comm., Consideration of Reports Submilled by States Parties under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Greece, ,i 10, U.N. Doc. CCPR/C0/83/GRC; Albania, supra note 254, "ii 15; U.N. Human Rights Comm., Consideration of Reports Submiued by States Parties under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Serbia and Montenegro, ,J 16, U.N. Doc. CCPR/C0/81/SEMO (Aug. 12, 2004); U.N. Human Rights Comm., Consideration of Reports Submilled by States Parties under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Lithuania, ,i 14, U.N. Doc. CCPR/C0/80/LTU (May 4, 2004); U.N. Human Rights Comm., Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Suriname, "ii 13, U.N. Doc. CCPR/C0/80/SUR (May 4, 2004); U.N. Human Rights Comm., Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Czech Republic, "ii 13, U.N. Doc. CCPR/C0/72/CZE (Aug. 27,2001). 271. See Edwards, supra note 16, at 349. 274. General Comment No. 16: The Equal Right of Men and Women, supra note 121, ,i 29 (unequal access to water and sanitation resources that bear on a women's health); U.N. Econ. & Soc. Council (ECOSOC), Sub-Comm. on Econ., Soc. & Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health, "ii"ii 8, 10, U.N. Doc. HRI/GEN/1/Add.6 (Sept. 27, 2000). The right to health includes control over one's body and sexual and reproductive freedom and a wider definition of the right to health takes into account violence and armed conflict. 273. Sally F. Goldfarb, Applying the Discrimination Model ro Violence against Women: Some Reflections on Theory and Practice, 11 AM. U. J. GENDER Soc. POL 'y & L. 251, 254 (2002-2003). 274. Id. Sally Goldfarb makes similar comments in relation to the U.S.'s Violence

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is no longer perceived as an individual criminal act but part of a systemic and political problem, requiring a systemic, political solution. 275 Without the formula, the treaty bodies would have only been able to deal with specific incidences of violence that were otherwise linked to other treaty rights. For the Women's Committee, this may have been limited to the specific context of trafficking, which is expressly included in Article 6 of the CEDA W. Likewise, the HRC would only have had the option of dealing with it as a violation of other provisions, such as those on torture, slavery, security of person, or life. 276 Instead, the Women's Committee has directly criticized a range of traditional practices that are considered discriminatory (and violent) to women, such as dowry, sati and devadasi systems, 277 and female genital mutilation, 278 bringing together the links between custom/tradition and violence against women that the Committee identified in its 1992 General Recommendation. The Women's Committee has also referred to the nonconsensual genital examinations of women; 279 unequal marriage practices between men and women, including low legal age of marriage, dowry practices, and early and forced marriage; levirate; 280 and inheritance of women. 281 In the Women's Committee's fact-finding mission to Mexico, sex discrimination was seen as a contributing factor to the abduction, rape, and murder of poor and young women, including adolescents, in the Ciudad Against Women Act that provided a federal civil remedy for violence against women. 275. Id. at 255. 276. In fact, the approach of the HRC has been to utilize the other provisions in spite of obvious sex discrimination issues. 277. India, supra note 241, ,J 68. Dowry (or bride price) is the payment of money, gifts, or estate by a woman's family to her husband in marriage. It is a practice in many societies. Sati (or widow burning) is a funeral practice among some Hindu communities in which a recently widowed woman would immolate herself on her husband's funeral pyre. Devadasi is a Hindu practice in which girls are "married" to a deity. Although largely derived from Hindu practices, similar practices are found elsewhere. See Amy Small Bilyeu, TrokosiThe Practice of Sexual Slavery in Ghana: Religious and Cultural Freedom vs. Human Rights, 9 IND. lNT'L & COMP. L. REV. 457 (1999). 278. See, e.g., U.N. Comm. on the Elimination of Discrimination against Women, Concluding Observations of the Committee on the Elimination of Discrimination against Women: Ethiopia, ,i 155 (Jan. 24, 1996), in Report of the Committee on the Elimination of Discrimination against Women: Fifteenth Session, U.N. Doc. A/51/38 (1996); U.N. Int'! Covenant on Civil & Political Rights, Sub-Comm. on Human Rights, Concluding Observations of the Human Rights Committee: Nigeria, ,i 30, U.N. Doc. CCPR/C/79/Add.65 (July. 24, 1996); U.N. Doc. A/59/38, supra note 263, ,i 132. 279. U.N. Comm. on the Elimination of Discrimination against Women, Concluding Comments: Turkey, ,i 25, U.N. Doc. CEDAW/CffUR/CC/4-5 (Feb. 15, 2005). 280. Levirate marriage is a type of marriage in which a woman marries one of her husband's brothers after her husband's death, if there are no children, in order to continue family succession of the deceased husband. 281. VANDENHOLE, supra note 171, at 150.

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Juarez area of Chihuahua, Mexico, alongside social and cultural breakdown, lack of social services, poverty, class, and other social and economic factors. The disjuncture between evolving gender roles of women and traditional "patriarchal attitudes and mentalities" fostered an environment that was said to have developed "specific characteristics marked by hatred and misogyny. There have been widespread kidnappings, disappearances, rapes, mutilations and murders." 282 The Committee stated: Along with combating crime, resolving the individual cases of murders and disappearances, finding and punishing those who are guilty, and providing support to the victims' families, the root causes ofgender violence in its structural dimension and in all its forms-whether domestic and intra-family violence or

sexual violence and abuse, murders, kidnappings, and disappearances must be combated, specific policies on gender equality adopted and a gender perspective integrated into all public policies. 283 Other traditional practices harmful to or discriminatory against women and girls that have been identified by the Women's Committee include dietary restrictions for pregnant women and preference for male children. 284 An equality paradigm also provides for equal protection of women before the law. This might include the removal of exceptions or distinctions in criminal laws for particular forms of gender-related violence or its selective prosecution. 285 The failure of a legal system to treat domestic violence as seriously as violence by strangers would be discriminatory against women. Women are often denied the equal protection of criminal law in contravention of the principle of equality before the law. 286 Rape inside as well as outside of marriage would need to be classified as a criminal offence to satisfy the principle of nondiscrimination on the basis of sex. The selective failure to prosecute rapists of prostitutes or members of vulnerable groups, such as disabled women, would also be disallowed under an equality paradigm. 287 For example, an 282. U.N. Comm. on the Elimination of Discrimination against Women, Report on Mexico produced by the Committee on the Elimination of Discrimination against Women under Article 8 of the Optional Protocol to the Convention, and reply from the Government of Mexico, 'II 24, U.N. Doc. CEDAW/C/2005/OP.8/MEXICO [hereinafter Report on Mexico]. 283. Id. '\J 34. 284. Violence against Women, supra note 194, 'II 20. 285. Fitzpatrick, supra note 238, at 538. 286. Id. 287. Id. See X & Y v. The Netherlands, 91 Eur. Ct. H.R. (Ser. A) (1985) (holding Netherlands had obligations under the right to privacy in ECHR Article 8 to provide a

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equality paradigm could prove useful when a state investigates murder cases against men but fails to do the same in respect of "honor" killings against women. 288 Additionally, defenses available to men that are not available to women, such as formal or customary rules that permit men to invoke unilateral divorce or where the state maintains Hudood Ordinances that are not applied equally, would be unlawful. 289 Furthermore, the VA W=SD formula contextualizes violence as a social justice issue rather than treating it as an individual anomaly. It approves the understanding of violence against women in a wider sociopolitical context, characterized variously by patriarchy, traditional and cultural stereotypes of women, rigid gender roles, poverty, and lack of economic and political autonomy for women. Violence against women seen in this way is a symptom of a much wider social problem. Julie Goldscheid, for example, argues that the daily experience of domestic and sexual violence survivors reflects the ongoing legacy of sex discrimination, both in the persistent gender-based differences in who generally commits and is harmed by the abuse, and in the responses victims encounter from legal, criminal justice, and social service systems. 290 Treating violence against women as rooted in unequal relations between women and men theoretically allows the committees to delve deeper into the causes of it. The sex discrimination template may in fact respond to some of the feminist critiques of international human rights law that it fails to respond to women's particularized experiences, that it oversimplifies complex power relations, or that it does not allow transfonnative outcomes. A final value in constructing violence against women as sex discrimination is that it turns what may otherwise be characterized as a "private indiscretion" or merely criminal activity into political violence. Inequality as a social phenomenon, rather than as an individual experience (although it is played out against individual women), requires social and

remedy for rape of an institutionalized girl with mental disability). 288. Ewing, supra note 49, at 780. 289. A Hudood Ordinance is a law intended to implement Shari'a law by enforcing punishments against extramarital sex, false accusation of extramarital sex, theft, and alcohol consumption. It is particularly criticized for deterring women from making complaints of rape. If unable to prove their complaint, women become open to prosecution under the Hudood Ordinance for adultery, which can carry penalties of death in some countries. For more on Hudood Ordinances, see Radhika Coomaraswamy, To Bellow Like a Cow: Women, Ethnicity and the Discourse of Rights, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTNES, supra note 49, at 43. 290. Julie Goldscheid, Domestic and Sexual Violence as Sex Discrimination: Comparing American and International Approaches, 28 T. JEFFERSON L. REv. 355, 356 (2006).

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political responses. It deconstructs the public/private dichotomy insofar as so-called "private" violence is turned into a public issue because it is set against the structural or public context of sexual inequality. In its first admissible decision in A.T v. Hungary, the Women's Committee, for example, consistently pointed out the links between domestic violence and sex discrimination, recalling in several places its 1992 General Recommendation. In finding that the state party had failed in its due diligence responsibilities to protect A.T. from domestic violence and threats of such violence in breach of Article 2(a), (b), and (e) of the CEDAW, in particular the recognition by the state administrative apparatus of unrestrictive property rights of the husband to the family home, the Committee reiterated that "traditional attitudes by which women are regarded as subordinate to men contribute to violence against women," 291 and that these attitudes plagued the state's dealings with the complainant. Similar discussions have occurred in the above-mentioned cases of Goekce and Yildirim. 292 However, in those aforementioned cases, none of the general recommendations made to the state party targeted socio-economic inequality outside the specific context of domestic violence. 293 The sex discrimination formula can also be used by men who experience gender-related violence because they do not adhere to accepted social and cultural mores. (b) Concerns relating to the VA W=SD formula The VA W=SD formula is not, however, a panacea for the absence of a prohibition on violence against women. First, attaching violence against women to the concepts of sex discrimination and inequality is subject to understandings of these latter terms, which, as shown in this article, are complex, contested, and difficult to pin down. Moreover, the exact content and meaning of these terms is far from agreed among the treaty bodies, and their implementation record varies. As noted in the first half of this article, these concepts are still tied to a sameness/difference ideology which, I would argue, is not as flexible a mode of analysis as the oppression/domination, advantage/disadvantage, or lack of hierarchy paradigms. Second, although the prohibition on discrimination is a non-derogable right, it is a limited one. Apart from the Women's Committee, all the treaty 291. A. T. v. Hungary, supra note 200, ~ 9.4. 292. Goekce v. Austria, supra note 198; Yildirim v. Austria, supra note 199. 293. The general recommendations, for example, called for strengthening of implementation; monitoring of the relevant legislation for protection against violence in the family; vigilant and speedy prosecution; and enhanced coordination between law enforcement and judicial officers.

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bodies' approaches to discrimination give room to justify discriminatory practices on the basis of "reasonable and objective" criteria. As noted above, such criteria are often treated as neutral terms by decision-makers, but they are, however, applied within a socio-political-cultural context and are influenced by the socio-political-cultural background and sex/gender of those decision-makers. That is, such exceptions are open to exclude or disregard the particular circumstances facing women, and they have been criticized for doing so. 294 The concern is that these same excuses are available to be argued and applied to failures to protect women from certain forms of violence, to prosecute or punish alleged offenders, or to provide appropriate redress. Third, difficulties in articulating the concepts of equality and nondiscrimination on the basis of sex leads to problems of implementation. Goldscheid notes that the connection between sex discrimination and sexual and domestic violence is "not easily, nor precisely, described." 295 The experience of the International Criminal Tribunal for the former Yugoslavia shows that recognizing rape, for example, as discriminatory can be problematic. In Kunarac, Kovac and Vukovic, the defendants admitted rape but argued that the rape was a personal indiscretion rather than political. Although the ICTY rejected these arguments, the record notes that the defense provided that "even if it were proved that he raped a woman, the accused would have done so out of a sexual urge, not out of hatred. " 296 Moreover, the discrimination considered relevant to this case was that of ethnicity, not sex. 297 Similarly, under international refugee law, arguments are frequently made by governments that acts of gender-based violence do not amount to political persecution as they are simply personal. In the United Kingdom House of Lords' asylum decision of Shah and Islam, Lord Hoffman acknowledged that there was a threat of violence to the claimants from their husbands, but he stated, "This is a personal affair, directed against them as individuals." 298 Only in recognizing the inability or unwillingness of the state to do anything to protect them because they were women did state responsibility become invoked. Lord Hoffman stated that it was "[t]he combination of these two elements" that made the otherwise private violence fall within the meaning of the J 951 Convention 294. Natalie Hevener Kaufman & Stefanie A. Lindquist, Critiquing Gender-Neutral Treaty Language: The Convention on the Elimination of All Forms of Discrimination Against Women, in WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES supra note 7, at 116. 295. Goldscheid, supra note 290, at 360. 296. See, e.g., Prosecutor v. Kunarac, Kovac & Vukovic, Case No. IT-96-23-T & IT-9623/1-T, ,r 816 (Feb. 22, 2001). The Court did not accept this argument, however. 297. Id. 298. R. v. Immigration Appeal Tribunal and another, ex parte Shah, [1999] 2 A.C. 629, 653 (H.L.) (individual opinion of Lord Hoffman).

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relating to the Status of Refugees, as amended by its 1967 Protocol. 299 The violence or threat of violence itself was insufficient even though it was perpetuated within a social and legal context that endorsed differential treatment between women and men. 300 A fourth concern with the VA W=SD formula is that it only encompasses gender-related forms of violence; that is, violence that is based upon or linked to sex discrimination. It does not, for instance, cover violence perpetrated against women outside this context, such as the torture of women by physical violence in state custody. Such violence remains to be dealt with under other provisions and other treaties. It thus sets up a two-tier system of protection-those acts motivated by gender and those that are not; those that are worthy of specific international human rights protection and those that are not. Requiring a link to be established between the act of violence at issue and discriminatory intent in order to recognize such violence as an issue of human rights law narrows considerably the scope of application of human rights law and the protection available. Gender alone may not be a significant or relevant factor in each act of domestic or sexual violence. That is, describing such violence as "gender violence" may be "underinclusive because individual acts may be informed by other socio-political factors as well as [or instead of] gender." 301 It also speaks to some feminist scholars who have resisted the priority or exclusiveness of gender over other identity-based factors. It has been claimed that the rhetoric of an inequality paradigm can be a powerful one. However, in domestic jurisdictions where it has been applied, commentators have noted that many if not most of the reforms or responses to sexual and domestic violence target neither sex discrimination nor other socio-political factors. 302 In contrast, at the international level, there is some evidence to suggest that broader recommendations for social or cultural change are within the responses of the treaty bodies whether in relation to individual cases or concluding observations on state party reports. More problematic still is that the rhetoric of inequality seems weaker 299. Id. 1951 Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (Apr. 22, 1954); 1967 Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267 (Oct. 4, 1967). 300. In U.S. domestic courts, the Violence Against Women Act (the civil remedy component of which was declared unconstitutional because it dealt with private actions rather than actions against the state, see United States v. Morrison 529 U.S. 595 (2000)) required courts to find a link between the violent conduct and discriminatory intent. Results were mixed. Some of the lower courts had no problem making the link by using, for example, the defendant's use of sexist epithets, the fact that the crime involved unwanted sexual conduct, the presence of multiple female victims, and the use of violence to force women into a stereotypical submissive role. See, Goldfarb, supra note 273, at 262. 30 I. Goldscheid, supra note 290, at 360. 302. Id. at 362.

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than the language of violence. The symbolism of language cannot be underestimated. Language has both legal and moral implications. It can serve to construct and reinforce patriarchal systems. It is important to label an act appropriately in order to ensure an appropriate response. The language of inequality or sex discrimination has tended to be applied in the context of discrimination in relation to unequal access to work or unequal pay for work of equal or comparable value. Sex discrimination has therefore tended to be reserved for civil suits, and it is possible under a discrimination framework for the discriminatory treatment to be inadvertent. This is to be compared with violence, which carries purposeful and usually criminal behavior and sanction. Language can also dictate the remedies available: anti-discrimination laws usually impose financial penalties whereas violence carries harsher criminal penalties of imprisonment or, still in some jurisdictions, death. These in tum reflect social values and attract societal disapproval. Generally, violence is condemned in society to an extent that discriminatory treatment against women is not. This reality opens up two possibilities. Either one should advocate the use of the more powerful language (violence) or one should fight to reinvigorate the weaker language to apply with greater force (sex discrimination). At an international level, an interim stage might also be suggested to utilize the language of discrimination until the language of violence is legally entrenched. Using sex discrimination in the violence context requires one to travel across different legal (and moral) regimes. Although inequality and discrimination may be the root cause of some forms of violence (e.g., in criminal law, it may be seen as an aggravating factor, such as crimes of incitement to racial hatred or genocide), a violent act has nonetheless been committed. Utilizing sex discrimination law because it is the only available remedy almost covers up the violence that has occurred or diminishes the extent of the conduct. Similar questions have been raised in relation to using torture to describe violence against women such as rape. 303 There is something counterintuitive about calling violent conduct discrimination rather than violence itself. The problem of language and perception also raises the question of whether the prohibition against sex discrimination is being asked to do too much. Packing the hopes and aspirations of women to live in societies free from sexual oppression and violence into a single legal construct of sex discrimination is risky. As this model has not been able to deliver in a few fundamental areas so far (see above), it seems ambitious to be asking it to also rid the world of systematic violence. Finally, the VAW=SD formula results in the unequal treatment of men

303. See Edwards, supra note 16, at 349.

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and women under international Jaw. The formula does not make violence against women prohibited conduct per se. Women victims of violence, whatever its form or manifestation, are protected by human rights law to the extent that they can establish that the violence is discriminatory or otherwise fits within another provision. 304 Violence that disproportionately affects men, in contrast, is not burdened with an additional link to sex discrimination or any other additional factors. While it has been widely argued in feminist academic circles that rape of women, for example, is always discriminatory (that is, women are at risk of rape due to gendered assumptions and stereotypes concerning the value and worth of women and due to women's oppression in society at large), 305 this is far more difficult to prove through empirical evidence in individual cases. Of course, it also turns on the meaning given to inequality. If the approach of Mahoney, Young, or Mac Kinnon is adopted--discrimination as disadvantage, oppression, or hierarchy-then it may be easier to cast rape per se, for example, as a form of discrimination. Rape is after all about the exertion of power over a victim; it is not about sex. Nonetheless, the unequal burden remains. F.

CONCLUSION

Settling the meaning and content of the fundamental principles of equality and non-discrimination on the basis of sex remains one of the greatest challenges for international human rights law. In fact, the "defining development of our time" has struggled under the weight of uncertain and varying definitions, interpretations, and applications. This article has shown that the debate has not changed significantly in the last twenty years except to the extent that ideas of formal and substantive equality are now generally accepted components of equality law. However these advances are still held ransom by the usage of gender-charged criteria of exception, such as reasonableness and objectivity. The first half of this article pointed to a system that continues to struggle with interpreting and applying these concepts, in particular because they remain tied to the sameness/difference ideology. This in tum causes difficulties in applying them to the issue of violence against women, not least because there may be no comparison. Only women for example are subjected to vaginal rape or enforced impregnation. 304. Id. 305. Judith Gardam, for example, has stated in the context of armed conflict that "in one sense rape is never truly individual but is an integral part of the system of ensuring the maintenance of the subordination of women." Judith G. Gardam, The Law of Armed Conflict: A Gendered Regime?, in RECONCEIVING REALITY: WOMEN AND INTERNATIONAL LAW supra note 49, at 174.

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What if the meaning of equality was framed within any of the reconceptualizations outlined above? Would it make any real difference in All three proposalsthe context of violence against women? oppression/domination, advantage/disadvantage, and lack of hierarchyare strides ahead of the current approaches of the treaty bodies to discrimination and inequality because they move away from comparisons between men and women to freedoms from gender straightjackets. It is possible to see glimpses of these alternative approaches to equality within the statements of some of the committees, which may hint of new directions yet to come. The CESCR has, for instance, used the language of "inherent disadvantage" while the CERD has applied ideas of "unjustifiable disparate impact." They do not, however, overcome all the difficulties associated with using discrimination to frame violence against women. Ideas of oppression/domination, advantage/disadvantage, and lack of hierarchy are also complex concepts. Moreover, they too, add an additional layer of proof for individual complainants. Not only does a woman need to establish that she has been raped, she also needs to prove that the rape was discriminatory, however that discrimination is conceived or defined. Such an additional layer of analysis is not applied to men in relation to violence that disproportionately affects them. It is also problematic as early definitions of discrimination that had intent as an element in characterizing a policy or practice as discriminatory have generally been discarded. Attributing a sexist intent to an individual perpetrator might, for instance, be easier (although still difficult) to establish in a given case than trying to claim that the entire social or cultural fabric is discriminatory (whether because women are treated differently to men or because it is a sexually oppressive system) and by consequence, the individual rape at issue is discriminatory. All three approaches also relegate women to positions of disadvantage in perpetuity. And finally, the discrimination-violence link, however discrimination is recast, conflates the act in question (the violence) and the cause (discrimination or disadvantage). In no other area of international human rights law is the cause built into the prohibition, and in doing so, the violence suffered by women is "exceptionalized." In this way, it masks the fact that egregious harm is being done on a widespread basis to half the world's population, wherever they happen to live. This in turn perpetuates a system of law and politics that excludes, marginalizes, and silences women and their daily lives. It is the latter that has been the "defining development" of international law, rather than advances in equality between men and women. Is it time to call for an explicit prohibition outlawing violence against women qua violence?

[14] A Critical Evaluation of International Human Rights Approaches to Racism KEVIN BOYLE AND ANNELIESE BALDACCINI I. INTRODUCTION

The focus of the Florence lectures has been on Europe, including the new legal obligations to be undertaken by EU member states on the elimination of racial and ethnic discrimination. The provisions of the Equal Treatment Directives are radical and far-reaching. 1 Yet these same states, with the exception of Ireland, have also been parties to the United Nations International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter 'ICERD'), in most cases for decades. 2 They have been obligated under that treaty to act to eliminate race- or ethnic-based discrimination. The major obligations under the new Directives are paralleled under ICERD. The EU states have submitted many reports to the monitoring committee for the UN Convention. But it is clear that the decades of implementation of the global convention have proved insufficient to force the kind of comprehensive legislative protection against racial and ethnic discrimination now required under the new Directives. Should one conclude that the UN Convention and other United Nations long-standing efforts to eliminate racism have been in vain? That regional approaches are the only effective way to persuade states to tackle racism? At the least such questions need to be asked. They are particularly appropriate in the context of the forthcoming United Nations World Conference on 1 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; Council Directive 2000/78/EC of27 Nov. 2000 establishing a general framework for equal treatment in employment and occupation. 2 GA Res. 2106 A (XX) (1965). In United Nations, A Compilation of International Instruments (1994), i, Part 1, at 66. For the list of ratifications, accessions, and successions, see Office of the United Nations High Commissioner for Human Rights (OHCHR), Status of Ratificatiom ofthe Principal International Human Rights Treaties, available on the website of the OHCHR at (treaty body mechanisms).

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Racism. 3 The purpose of that Conference is (or should be) to take stock of achievement and to define what policies and strategies should be pursued for the future. The World Conference takes place against the unpalatable reality that racism, in all its manifestations, is pervasive in the world. Whether expressed in theories of 'natural' racial hierarchy, or in hostility and violence towards different ethnic groups within multiethnic states, or towards migrants and refugees, racism has not only survived the twentieth century's major idea of human rights but threatens its very achievements. 4 A review of international human rights approaches to the elimination of racism and racial discrimination must begin with the acknowledgement that the world community is a long way from achieving one component of the basic message of human rights-that of the equal dignity of all human beings. At the outset of the new century, the challenge of securing the right to equality promised in the Charter of the United Nations to all individuals remains unfulfilled. Racism and racial discrimination is but one manifestation of the denial of equality. Sex discrimination that feeds violence against women, the hatred and discrimination suffered by people on grounds of their religion, and the suppression of cultural and linguistic minorities are all global facts. There have been advances. In the context of racism, the most important of the last half-century has been the end of colonialism through the achievement of independence and self-determination for millions of people. Another has been the dismantling of institutionalized white racism in Southern Africa and the United States. But fear and rejection of difference, alongside justifications of inequality in the treatment of human beings based on so-called race, ethnic origin, descent or colour, presents a continuing human rights challenge in all societies. 5 The United Nations Charter gave as one purpose of the new world organization the achievement of international cooperation 'in promoting and 3 A United Nations World Conference organized by the High Commissioner for Human Rights is to be held in South Africa from 31 Aug. to 7 Sept. 2001. A website devoted to the preparations of the World Conference can be accessed from the OHCHR home page . See also Part VI infra. 4 For a powerful and sobering analysis of the challenge of contemporary racism, see Report of the International Council on Human Rights Policy, The Persistence and Mutation ofRacism (1999). 5 The dilemma involved in using the term race has exercised many concerned with combating racism and racial discrimination. There is only one human race and there is no scientific biological basis as there was once believed to be for classifying human beings into categories called races. Physiological traits and differences of colour between people do not justify racial classifications. The differences between human beings are a function of different ethnic identities. Nevertheless racism constitutes a set of objectively false beliefs that biological differences do exist between humans chat are linked to a racial hierarchy. It is rhe survival of these beliefs that justify discrimination and subordination of others. However, while it is not impossible to abandon completely the language of race used in the international standards, it is desirable to speak of racial or ethnic discrimination rather than racial discrimination. See further n. 77.

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encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion'. 6 The United Nations was to be a 'center for harmonizing the actions of nations in the attainment of these common ends'.7 At the same time, the potential of the UN was deliberately constrained by the limitation imposed through Article 2(7) of the Charter, excluding intervention by the United Nations in matters 'essentially within the domestic jurisdiction of any state'. It has been on these contradictory foundations that international approach to the protection of human rights have been built over the last fifty years. That approach has involved securing agreement on common global human rights standards and having states accept these standards as binding commitments in international law. A crucial part of the international approaches has been to persuade states to accept international supervision in the implementation of such commitments. In addition, the UN has sought to develop its capacity to respond to serious violation of these international human rights standards through investigation and by creating limited avenues of complaint and redress for victims. But it remains an essential feature of the international human rights system that it is virtually impotent without the support and commitment of states. The central question for the future is how to sustain support and commitment from all countries. Elimination of racial, ethnic, and other types of discrimination, as forms of human rights violation, requires significant social change in most if not all societies. It cannot be achieved solely by the enactment of anti-discrimination laws, important as such laws are. There is little evidence that countries understand the full implications of racial or ethnic equality or are yet ready to embrace the long-term changes necessary to achieve it. With these thoughts in mind this chapter will consider the origins of the international human rights approaches towards racism and racial discrimination. In addition, it will examine the activities and policies pursued at the international level in countering racism and racial discrimination, as well as the institutions through which such activities and policies have been pursued. A full account of international human rights approaches should embrace regional levels as well. These dimensions are covered elsewhere in the volume and this account will concentrate on the global human rights system developed through the United Nations. However, the need for the future to envisage a greater level of integration of national regional and global human rights approaches to the achievement of equality and non-discrimination will be discussed.

6

United Nations Charter, Article 1(3).

7

Ibid., Article 1 (4).

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Kevin Boyle and Anneliese Baldaccini II. THE SIGNIFICANCE OF THE LANGUAGE OF EQUALITY IN THE UNITED NATIONS CHARTER

International efforts to tackle racism and racial discrimination should be first considered in the context of the UN Charter's endorsement of the principle of human equality. Reference to the human rights language of the UN Charter is often abbreviated to leave out the equally important language of equality. Thus, Article 1(3) of the Charter committed the new international body 'to achieve international cooperation in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction

as to race, sex, language or religion'. 8

The revolutionary nature of the Charter was not alone that the promotion and encouragement of human rights was to be one of its purposes, but that that goal embraced all human beings equally 'without distinction as to race, sex, language, or religion'. Language linking the non-discrimination principle with the subject of human rights is to be found throughout the Charter. 9 The rejection of discrimination and the affirmation of the right to equality of treatment in the 1948 Universal Declaration of Human Rights, as well as in all later human rights treaties, underscores that human inclusiveness is a characteristic of the international human rights approach. 10 The early action taken to prepare instruments directed at the elimination of discrimination, in addition to conventions of a general character, is a unique feature of standard setting on human rights at the global level. 11 Although the dominant approach, after 1945, to the promotion and protection of internationally recognized human rights was to be based on the defence of the rights of individuals, there was also recognition that individuals faced denial of rights because of group characteristics. The distinctions identified in the Charter-race, sex, language, and religion-were at the time seen as the main categories of discrimination or exclusion believed in, practised, and justified throughout the world. Emphasis added. See, in addition to Article 1(3), Articles 13(1)(6), 55(c), and 76(c). Other human rights provisions in the Charter are to be found in Articles 62(2) and 68 concerning the functions ro be discharged in chis field by the Economic and Social Council. See also W. McKean, Equality and Discrimination under International Law (1983), at 54-5. 10 Universal Declaration of Human Rights (UDHR), adopted by GA Res. 217 A (III) (1948). In International Instruments, supra n. 2, at 1. 11 Such early instruments are, for instance, the Convention on the Prevention and Punishment of the Crime of Genocide, GA Res. 260 A (III) (1948); the Convention for the Suppression of the Trafficking in Persons and of the Exploitation of the Prostitution of Others, GA Res. 317 (IV) (1949); the Convention on the Political Rights of Women, GA Res. 640 (VII) (1952); the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, GA Res. 608 (XX.I) (1956). AIi in International Instruments, supra n. 2, Parts 1 and 2. 8 9

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The emphasis on equality and the repudiation of discrimination resulted directly from the context in which the United Nations was established. The UN was born in the aftermath of the defeat of Nazism, a racist ideology. The Universal Declaration of Human Rights-the instrument that was to give content to the human rights provisions entrenched in the Charter-was drafted with the perversions of Nazism in mind. The first international human rights convention, the Genocide Convention of 1948, was aimed at stigmatizing as an international crime the ultimate expression of racism, the destruction of national, ethnic, racial, or religious groups. 12 In drafting the Universal Declaration, members of the United Nations Human Rights Commission, while divided over whether the Universal Declaration should be of a binding or declaratory nature, agreed from the outset that prominence was to be given to the principle of equality or the standard of nondiscrimination as the starting point of all other liberties. 13 The early establishment of a Sub-Commission on the Prevention of Discrimination and the Protection of Minorities was a crucial reflection of this need for parallel work on the causes and extent of discrimination, as well as the need for new international instruments and standards to combat discrimination. Article 1 of the Universal Declaration proclaims the positive principle that '[a]ll human beings are born free and equal in dignity and rights'. Article 2 proclaims the entitlement of everyone to the rights and freedoms in the 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'. The Declaration thus aimed at the elimination of all forms of discrimination, adding categories not found in the Charter. Article 7 sets forth the principle of equality before the law and the entitlement of all to 'equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination'. These principles were also firmly inserted in the subsequent two United Nations Covenants that along with the Universal Declaration of Human Rights make up the International Bill of Human Rights. 14 The two Covenants include a common Article 3 on equality between men and women, as well as prohibitions on discrimination on the grounds first elaborated in Article 2 of the Universal Declaration cited above. In addition, the Civil and Political Covenant in Article 26 sets out a free-standing equality clause based on Article 7 of the Universal Declaration. It was on these foundations, entrenching the norms of equality and non-discrimination, that all other Ibid., Part 2, at 673. Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (1999), at 92-116. 14 Internacional Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR), both adopted by GA Res. 2200 A (XXI) (I 966). In International Instruments, supra n. 2, at 8 and 20. 12

13

J.

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international human rights instruments created through the United Nations and the regional systems have been built. The commitment to equality of treatment led to specific international instruments on the main types of discrimination aimed at their elimination. Racial and ethnic discrimination was one such field. Sex discrimination was another. The International Convention on the Elimination of All Forms of Racial Discrimination came into force in 1969 and the parallel Convention on the Elimination of Discrimination against Women in 1981. 15 Progress on elaborating standards in respect of victims of religious discrimination or discrimination experienced by cultural minorities, including on such grounds as language, proved more difficult. In 1981, the Declaration on the Elimination of All Forms of Intolerance and Discrimination based on Religion or Belief was adopted by the General Assembly. 16 A decade later, the Declaration on the Rights of Minorities was adopted. 17 In neither case has sufficient consensus been found to transform these texts into legally binding instruments. The claim to equality is a dynamic one and new forms of discrimination have been asserted and progressively recognized. The UN Declaration on the Rights of Disabled People 1975 is one example. 18 The proposed Declaration on the rights of Indigenous Peoples is another, as is the emerging concern with discrimination on grounds of sexual orientation. 19 The links between different forms of discrimination and intolerance, including the links between racial or ethnic discrimination and other forms of discrimination, need for the future to be made more explicit. That can be achieved through a greater emphasis on the right to equality of treatment as a crosscutting concern in international human rights theory and practice. Such an approach can help to end the relative and unproductive isolation in which different international human rights instruments and mechanisms concerned with discrimination appear to operate.

15 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), GA Res. 34/180 (1979). In ibid., at 150. 16 GA Res. 36/55 (1981). In ibid., at 122. 17 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res. 47/135 (1992). In ibid., at 140. 18 GA Res. 3447 (XXX) (1975). In ibid., Pare 2, at 544. 19 Draft Declaration on the Rights oflndigenous Peoples. E/CN.4/Sub.2/1994/2/Add.1 (1994). Discrimination against homosexuals has not been the subject of specific norms at the United Nations but has been progressively recognized as a prohibited ground of discrimination in many countries. Under the new Prococol 12 to the European Convention on Human Rights (ECHR) which provides for a 'free-standing' prohibition on discrimination, sexual orientation, while not explicicly mentioned, is included. See, Explanatory Report co Prococol 12, Council of Europe, Directorate General of Human Rights 1999, and Salgueiro da Silva Mouta v Portugal, European Court of Human Rights, judgment of21 Dec. 1999.

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III. THE CENTRALITY OF RACIAL DISCRIMINATION IN THE DEVELOPMENT OF INTERNATIONAL HUMAN RIGHTS LAW The challenge of race and racism has had a profound influence on the international human rights protection system created through the United Nations over the last half century. Indeed, it was largely the search for an effective international response to racism that produced the main components of the UN human rights regime. The United Nations was established in the aftermath of the Holocaust. But it was also born at a time of the colonial empires of European powers that were based on explicit assumptions of racial superiority and inferiority. While the United Nations was centrally involved in the achievement of decolonization, in which the colonial powers for the most part cooperated, these same powers were deeply concerned that racial practices in their colonies would face challenge at the international level. The United States, which did not have colonies but did have racial segregation and disenfranchisement of its black minority in its southern states, had similar concerns with international scrutiny. Opposition from a number of countries to the United Nations having authority to protect human rights (in addition to the function of encouraging and promoting them) stemmed in part from concern over likely scrutiny of domestic policies on race and immigration. Equally, the exclusion of UN involvement in member states' domestic affairs (Article 2(7) of the Charter) was in large part motivated by an unwillingness of such countries as the United States and the United Kingdom to envisage external scrutiny of their racial practices. 20

(i) Racial Segregation in the United States The race question was to prove a major factor in shaping US policy towards accession to the international conventions on human rights promoted through the UN. The importance of the human rights and equality language of the UN Charter was quickly seen by opponents of American apartheid. In 1946, a petition was submitted to the UN by the National Negro Congress expressed to be on behalf of 13 million oppressed Negro citizens. 21 In 1947, the National Association for the Advancement of Coloured People (NAACP) 20 Lauren, 'First Principles of Racial Equality: History and the Politics and Diplomacy of Human Rights Provisions in the United Nations Charter', 5 HRQ (1983) 1, at 19. 21 McDougall, 'Toward a Meaningful International Regime: The Domestic Relevance of International Efforts to Eliminate All Forms of Racial Discrimination', 40 Howard Law Journa/(1997) 571, at 573.

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submitted a similar petition calling for redress. 22 Civil rights lawyers sought to invoke the Charter in domestic challenges to racism with some initial success. 23 In 1950 in Sei Fuji v State, a Californian district court of appeal declared a land ownership statute unconstitutional because it discriminated against a Japanese national. The Court relied on the human rights clauses of the Charter in its decision. 24 On appeal, however, the California Supreme Court held that Articles 55 and 56 of the Charter were not self-executing. 25 In an earlier case, also involving discrimination against persons of Japanese origin, the Charter's non-discrimination clauses were raised before the United States Supreme Court. 26 The American Civil Liberties Union argued that the Charter established obligations on the United States government to reject racial discrimination. While the majority of the Court determined the case in favour of the petitioner on other grounds, one judge in a trenchant opinion invoked the Charter and its prohibition of racial discrimination. 27 These cases, although they proved the high water mark of attempts to apply the human rights provisions of the Charter in US courts, did trigger a campaign in the US Congress to restrict the power of the President to enter into human rights treaty commitments. Among the concerns was the likely infringement on the powers of the states and that such treaties would entail international scrutiny of racial segregation. In 1954, the Secretary of State, John Foster Dulles, gave an undertaking to the Senate that the US would not join any international human rights treaty. 28 It has only been in the 1990s that the US has ratified some of the international human rights treaties, including the International Convention on the Elimination of Racial Discrimination. 29 (ii) South Africa and Apartheid Notwithstanding the Great Powers' intentions, the race question burst on to the international level at an early point. The coming to power of the 22 Janken, 'From Colonial Liberation to Cold War Liberalism: Walter White, NAACP and Foreign Affairs, 1941-1955', 21 Ethnic and Racial Studies (1998) 1074, at 1982. 23 Lockwood, 'The United Nations Charter and United States Civil Rights Litigation: 1946-1955', 69 Iowa Law Rev. (1984) 900. 24 217 P.2d 481 (Cal.Dist.Ct.App. 1950). 25 38 Cal.2d 718 (1952). The Court held the Alien Land Act unconstitutional as a violation of the 14th Amendment. Article 56 UN Charter proclaims that '[a]ll Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.' Article SS(c) states that the UN shall promote 'universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion'. 26 Oyama v California, 332 US 633 (1948). 27 Lockwood, supra n. 23, at 919. 28 F. Newman and D. Weissbrodt, International Human Rights Law Policy and Process (1996), at 34-5. 29 The US ratified ICERD on 21 Oct. 1994. See Status ofRatifications, supra n. 2.

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Nationalist Government in the Republic of South Africa in 1948 with an avowedly racist policy of apartheid, and the racist policies in Southern Rhodesia, South West Africa, and the Portuguese colonies, presented the first human rights challenges to the new United Nations. As early as 1946, when a complaint was lodged by the Indian Government over the treatment of persons oflndian descent in South Africa, that country's racial policies were on the agenda of the major United Nations organs. 30 It was not, however, until 1952 that the 'question of race conflict in South Africa resulting from the policies of apartheid of the Government of the Union of South Africa' was first discussed at the General Assembly. Overruling vehement objection from South Africa that the matter fell essentially within its domestic jurisdiction, the General Assembly voted to establish an ad hoc commission to study the racial situation in South Africa. 31 Reports of the ad hoc commission found that South Africa's racial policies were contrary to the United Nations Charter human rights provisions. The General Assembly noted these findings with 'concern' 32 and 'apprehension'. 33 It was to progressively adopt ever stronger language in condemnation of South Africa's racist policies over the following years. 34 The resolutions passed by the General Assembly, based on the findings of the ad hoc commission, asserted the right to condemn, and to demand rectification of, breaches of the human rights provisions of the Charter. 35 In particular, the General Assembly determined that governmental policies not directed towards racial equality were inconsistent with Articles 55 and 56 of the Charter. 36 After the outrage provoked by the Sharpeville massacre in 1960, the Security Council joined the General Assembly in condemning South Africa's racial policy, holding implicitly that human rights provisions of the Charter prevailed over the domestic jurisdiction clause. 37 The International Court of Justice upheld the view that the Charter's human rights provisions, far from being simple statements of morality, laid down binding obligations for member states. The challenge of racism played a decisive role in this development. The legal and binding character of the non-discrimination norm enshrined in the 31 GA Res. 616A (VII) (1952). Lauren, supra n. 20, at 24. 33 GA Res. 820 (IX) (1954). GA Res. 721 (VIII) (1953). 34 GA Res. 917 (X) (1955), Res. 1178 (XII) (1957), Res. 1248 (XIII) (1958), Res. 1375 (XIV) (1959). An overview of the General Assembly's early resolutions on South Africa is to be found in Dugard, The Legal Effect of United Nations Resolutions on Apartheid', 83 South African journal ofInternational Law (1966) 44, at 44-5. 35 On the gradual restriction by the General Assembly of states' domestic jurisdiction, see Cassese, 'The General Assembly: Historical Perspective 1945-1989', in P. Alston (ed.), The United Nations and Human Rights-A Critical Appraisal ( 1992) 25, at 32-4. Also R. Higgins, The Development of International Law Through the Political Organs of the United Nations (1963), at 58-130. 36 See supra n. 25 for the text of Articles 55 and 56 UN Charter. 37 Res. S/4300 (1960). On the Sharpeville massacre see further below. 30 32

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Charter was first tested with respect to the policy and practice of apartheid and racial discrimination. 38 In the Namibia case, the International Court ofJustice held that racism and racial discrimination constituted a total negation of the purposes and principles of the Charter. 39 It is now established in international law that the prohibition of racial discrimination exists independently of the general obligation to respect human rights and is part of ius cogens. 40 From the 1960s onwards, as a result of the pressure of the newly independent African and Asian countries, which had gained the majority of votes in the General Assembly, critical discussion of apartheid policy gave way to concrete, and over the years successful, attempts at imposing sanctions on South Africa. 41 Condemnation of apartheid led to the adoption, in 1973, of the Convention on the Suppression and Punishment of the Crime of Apartheid. 42 The General Assembly followed this in 1985, with the adoption of the Convention Against Apartheid in Sports. 43 38 See the dissenting opinion of Judge Tanaka in the South West Africa cases (Second Phase), who referred to Article 55(c) of the Charter to demonstrate that the rule of nondiscrimination 'can be regarded as a source of international law'. ICJ Reports (1966), at 293. 39 The Court stated that 'to enforce distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, color, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter .. .'. Legal Consequences far States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), IC] Reports (1971) 3, at 57. One year before, in Barcelona Traction, Light & Power Co., the Court had referred to the outlawing of, inter alia, racial discrimination as obligation erga omnes. IC] Reports (1970), at 3. See Radley, 'Human Rights and Humanitarian Intervention: the Case Law of the World Court', 38 ICLQ (1989) 321, at 321-33. 40 In 1986, the US (Third) Restatement of the Foreign Relations Law recognized that systematic racial discrimination constitutes a violation of peremptory norms of customary international law. Restatement (Third) § 702, n. 11 (1986). 41 The first resolution by the General Assembly to call on states to break off diplomatic and economic relations with South Africa was voted in 1962 (Res. 1761 (XVII)). The same resolution requested the Security Council to take appropriate measures and, if necessary, to consider the expulsion of South Africa from the United Nations. A year later the Security Council recommended to the member states an arms boycott against South Africa (SC Res. 181 (I 963)). The General Assembly thereafter repeatedly stated that the apartheid policy constituted a threat to international peace and, as early as 1973, it had suspended South Africa from participating in the work of the Organization. The Security Council's endorsement came after much hesitation in 1977 when it imposed sanctions by a binding decision acting under Chapter VII, thus characterizing apartheid as a threat to international peace in the sense of Article 39 of the Charter (SC Res. 418 (1977)). On the international legal and political aspects of apartheid, see Delbrueck, 'Apartheid', in R. Wolfrum (ed.), United Nations: Law, Politics and Practice (1995) i, 27, at 34-8. 42 GA Res. 3068 (XXVIII) (1973). In International Instruments, supra n. 2, at 80. Article 1(1) declares that apartheid is a 'crime against humanity' and a 'serious threat to international peace and security'. The Convention met objections particularly on the part of Western states because it was said that the vague language used in the definition of various crimes contained in the Convention did not meet the standards required by the rule of law. Delbrueck, supra n. 41, at 36. 43 GA Res. 40/64 (1985). In International Instruments, supra n. 2, at 87.

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Support in the General Assembly for action against apartheid and racial discrimination in Southern Africa brought a further and least expected change of policy with respect to domestic jurisdiction. This concerned the treatment of petitions from individuals over human rights violations. From the outset, it had been the position of the Commission on Human Rights-the body set up by the Economic and Social Council (ECOSOC) under Article 68 of the Charter with the task of promoting human rights-that it had no power to respond to the stream of petitions over human rights violations throughout the world received at the UN. 44 This policy suited the colonial powers and the United States precisely because of the issue of race. It also suited the Soviet Union, which was equally reluctant that the repressive policies pursued by Stalin would be ventilated on the international stage. 45 The Soviet Union, however, was prepared to support as part of the ideological contest the initiative of the African countries to change the Commission's practice on responding to complaints. What both the African countries and the Soviet Union had in mind was racism and colonialism in Southern Africa. In the event, the ECOSOC Resolutions 1235 and 1503, which created the mechanisms for responding to violations, were expressed to be primarily focused on apartheid and racial discrimination. 46 But the language adopted crucially provided for competence to consider violations of human rights wherever they may occur. 47 It was on these foundations that the competence of the Commission on Human Rights and its Sub-Commission to respond to gross violations of human rights in the world has developed. 48 One response of the Commission has been to establish special rapporteurs on specific themes of violation. One such is the Special Rapporteur on Contemporary Forms of Racism and Related Intolerance appointed in 1993 whose role is discussed below. 44 What is known as the '1947 Doctrine', following the Commission on Human Rights adoption, at its first session in 1947, of a self-denying rule to the effect that it would take no action on individual human rights complaints. See ECOSOC Res. 75 (V). This rule was reaffirmed in 1959 by ECOSOC Res. 728 F (XXVIII). 45 Alston, The Commission on Human Rights', in Alston, supra n. 35, 126, at 141. 46 ECOSOC Res. 1235 (XLII) (1967) authorized the Commission and its SubCommission to 'examine information relevant to gross violations of human rights and fundamental freedoms, as exemplified by the policy of apartheid as practised by the Republic of South Africa ... and racial discrimination as practised notably in Southern Rhodesia ... and to make a thorough study of situations which reveal a consistent pattern of violation of human rights, and repott, with recommendations thereon, to the Economic and Social Council .. .'. ECOSOC Res. I 503 (XLVIII) (1970) devises a greatly improved procedure for handling complaints from individuals and non-governmental organizations which appear to reveal a consistent pattern of gross and reliably attested violations of human rights. 47 See GA Res. 2144 (XXI) (I 966), which invited the Council and the Commission 'to give urgent consideration to ways and means of improving the capacity of the United Nations to put a stop to violations of human rights wherever they occur (emphasis added). 48 For an extensive study of the development of these non-treaty procedures, see Alston, supran. 45, at 126-210.

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(iii) The Pioneering Studies of the Sub-Commission on Prevention of Discrimination and Protection of Minorities

A crucial role in the development of international human rights law and its implementation was played by the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. 49 The Sub-Commission was set up in 1947 as an advisory body to the Commission on Human Rights. 50 The Commission from its inception was riven by bloc-voting and by the refusal of state delegates to allow their country or other members to be criticized. Members of the Sub-Commission, appointed as independent experts and-at least in theory-less vulnerable to political pressure, proved more willing to act as a human rights body. After contributing to the drafting of the anti-discrimination provisions of the Universal Declaration of Human Rights, the Sub-Commission turned its attention to implementation and enforcement action. Early attempts to pursue an active policy in this respect were, however, challenged by the Commission and ECOSOC. The SubCommission thereafter focused on research and standard setting particularly in the field of discrimination. 51 While the subject of sex discrimination was taken on by the Commission on the Status of Women, the Sub-Commission conducted and forwarded to the Commission on Human Rights a number of studies on the problems of discrimination in other fields. The first such study concerned discrimination in education and became the basis of UNESCO's 1960 Convention on the same subject. 52 A study on discrimination in employment and occupation 49 On the crucial role played by the Sub-Commission in its early years, see Humphrey, The United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities', 62 AJIL (1968) 869. For an overview on its more recent activities, see Koufa, 'Elimination of Racial Discrimination and the Role of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities', 10 International Geneva Yearbook (1996) 44. See also Eide, The Sub-Commission on Prevention of Discrimination and Protection of Minorities', in Alston, supra n. 35, at 211-64; McKean, supra n. 9, at 72-81. 50 The Sub-Commission was authorized to 'undenake srudies, particularly in the light of the Universal Declaration on Human Rights, and to make recommendations to the Commission on Human Rights concerning the prevention of discrimination of any kind relating to human rights and fundamental freedoms and the protection of racial, national, religious and linguistic minorities', Report of the Commission on Human Rights, UN Doc. E/1371 (1949). 51 The difficult relation in the early years of the UN between the Sub-Commission and its referent bodies is well captured in the comment by a notable author that the 'crime of the SubCommission was that it had taken its job too seriously'. Humphrey, supra n. 49, at 875. 52 Study of Discrimination in Education, by Charles D. Ammoun, appointed Special Rapporteur of the Sub-Commission. UN Doc. E/CN.4/Sub.2/181/Rev.l (1957). For the UNESCO Convention against Discrimination in Education (1960), see International Instruments, supra 11. 2, at 101.

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was entrusted to the International Labour Organization. That also led to an important Convention. 53 Other studies were on discrimination in political rights, 54 on religious rights and practices, 55 on emigration and the right to return, 56 and on racial discrimination in political, economic, social, and cultural fields. 57 These studies were acted upon by the Commission on Human Rights and provided much of the basis for international instruments subsequently adopted in the field of discrimination. This early work of the SubCommission was also of enduring value for its analysis of different aspects of discrimination and its development of such concepts as that of indirect discrimination, justified distinctions, and special or positive measures. 58 These concepts were later incorporated in the anti-discrimination treaties. Although its mandate and functions have considerably expanded, in recent years the Sub-Commission has continued to contribute significantly to work on equality and non-discrimination. 59 Its study on the exploitation oflabour through illicit and clandestine trafficking, completed in 1975, led to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted in 1990. 60

53 ILO Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation (1958). In ibid., at 96. 54 Study ofDiscrimination in the Matter ofPolitical Rights, rapporteur Hernan Santa Cruz. UN Doc. E/CN.4/Sub.2/213/Rev.l (1962). 55 Study of Discrimination in the Matter of Religious Rights and Practices, rapporteur Arcot Krishnaswami. UN Doc. E/CN.4/Sub.2/200/Rev.l (1960). This study sharply divided the Commission and despite the General Assembly's decision that there should follow a declaration and a convention on the elimination of religious intolerance, the first saw the light in the 1980s, while the latter never came into existence. 56 Study ofDiscrimination in Respect to the Right ofEveryone to Leave Any Country, Including his Own, and to Return to his Country, rapporteur Jose D. Ingles. UN Doc. E/CN.4/

Sub.220/Rev. l (1963). Interestingly, the Sub-Commission's intention to include in this study the controversial question ofimmigration was not accepted by the Council. Humphrey, supra n. 49, at 880. 57 Special Study of Racial Discrimination in the Political, Economic, Social and Cultural Spheres, rapporteur Hernan Santa Cruz. UN Doc. E/CN.4/Sub.2/267 (1966). 58 McKean, supra n. 9, at 94-6.

59 To acknowledge the Sub-Commission's considerably expanded mandate, ECOSOC recently renamed it 'Sub-Commission on Promotion and Protection of Human Rights'. Dec. 1999/256 of27 July 1999. 60 GA Res. 45/158 (1990). In International Imtruments, supra n. 2, Part 2, at 554. Further examples include the report on the rights of persons belonging to ethnic, religious, and linguistic minorities, conducted by Mr Capotorti and completed in 1977, that led to the 1992 UN Declaration on minorities, supra n. 17. The study of problems of discrimination against indigenous populations, conducted by Mr Eide in 1983, together with the pioneering work of the Sub-Commission's working group on the indigenous populations, resulted in the drafi: Declaration on the Rights of Indigenous Peoples, that is currently being considered for adoption by the Commission on Human Rights, supra n. 19.

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(iv) Standard Setting and Racial Discrimination As already noted, the late 1950s and early 1960s saw a growing number of newly independent countries taking seats at the United Nations, determined to see the development of new procedures to combat apartheid and racism. The Sub-Commission, as a result, became increasingly concerned with racial discrimination. In 1960, South Africa provoked a horrified international response when its police massacred sixty-nine peaceful protesters in the black township of Sharpeville. In the same year, widespread anti-Semitic incidents in West Germany and other parts of the world provoked a sharp reaction by the Sub-Commission, which was in session. It took the initiative-unprecedented in the UN subsidiary bodies-of adopting a resolution condemning these manifestations of anti-Semitism. 61 In the wake of these events, the need to put in place an effective instrument to combat racial discrimination as well as religious intolerance was widely shared and gave rise to a decision by the General Assembly to draft a declaration to be followed by a convention. 62 The intention had been to draft an instrument embracing both religious and racial discrimination. No consensus could, however, be reached in the Third Committee with regard to religious issues and it was eventually decided to aim at two different instruments, one dealing with religious discrimination and intolerance and one with racial discrimination. 63 The opposition to a joint instrument came from some of the Arab delegations, and the Soviet and Eastern Europe states. Arab countries were concerned over the inclusion of anti-Semitism lest it might be read as a recognition of the state of Israel. The Soviet Union for its own reasons was not prepared to have religious discrimination included but did want a focus on race. 64 Acrimonious controversy over the question of anti-Semitism as constituting racial as well as religious prejudice resurfaced in the Third Committee during the drafting of the Race Convention. As one source of the initiative to draft a Convention had been the outbreak of anti-Semitism some delegations, led by the United States, sought to have a specific reference condemning anti-Semitism, as well as UN Doc. E/CN.4/Sub.2/L.214. Humphrey, supra n. 49, at 882. Literature outlining the history of the adoption of the Race Convention is consistent in tracing its origins back to the events described above. See, among others, Schwelb, 'The International Convention on the Elimination of All Forms of Racial Discrimination', 15 ICLQ ( 1966) 998, at 997-1000. Meron, 'The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination', 79 AJIL (1985) 283, at 285-6. 63 Sensitivity over religion had already emerged as a result of the study of discrimination in religious rights and practices conducted by the Sub-Commission's rapporteur, Arcot Krishnaswami, and submitted to the Commission on Human Rights in 1960. See supra n. 55. 64 Schwelb, supra n. 62, at 999. Also, N. Lerner, Group Rights and Discrimination in International Law (1991), at 46. 61

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apartheid. 65 While a number of delegations did refer in speeches to the Holocaust, Arab political sensitivities resulted in the reference being dropped. But not before the Soviet Union submitted a draft that would have added also a condemnation of Zionism and Nazism. 66 While controversy over religious issues stranded for more than twenty years a parallel declaration on religious discrimination, the Declaration on the Elimination of Racial Discrimination followed speedily in 1963. 67 It was followed two years later by the Convention on the Elimination of All Forms of Racial Discrimination. That treaty marked the real beginning of the international protection of individual human rights. The UN had begun the treaty approach to combating human rights violations in 1948 with the Genocide Convention, but no progress could be made on the establishment of any international mechanism for the Convention's enforcement. ICERD had enforcement provisions including a procedure for individuals to complain against states, a breakthrough that stemmed from the Sub-Commission. 68 ICERD set an important precedent. It cleared the way for the later adoption of the International Covenants and the development of procedures for monitoring the extent of states' compliance with their human rights treaty obligations. IV. THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION The centrepiece of the international human rights approach to combating racism and racial discrimination is the International Covenant on the Elimination of All Forms of Racial Discrimination 1966 (ICERD). The Convention entered into force on 4 January 1969 and has therefore now been in force for over three decades. It was, until 1993, when it was overtaken by the Convention on the Rights of the Child, the most widely ratified international human rights treaty. 69 Schwelb, supra n. 62, at 1011-14. Such manoeuvres, culminating in the condemnation of Zionism by a resolution of the General Assembly in 1975, have dogged the United Nations over the years and have damaged its credibility considerably. See van Boven, 'United Nations Strategies to Combat Racism and Racial Discrimination: A Sobering but not Hopeless Balance Sheet', in M. Castermans et al. (eds), The Role ofthe Nation-State in the 21st Century (1998) 251, at 253 and n. 236 infra. 67 United Nations Declaration on the Elimination of All Forms of Racial Discrimination, GA Res. 1904 (XVIII) (1963). In International Instruments, supra n. 2, at 61. 68 'the first basic plan for the implementation of the convention was suggested by Judge Jose Ingles in the Sub-Commission. Had he not taken this initiative, it is unlikely chat the General Assembly would ever have adopted measures for implementation of the convention', Humphrey, supra n. 49, at 883. 69 157 states are to dace party to the Convention. See supra n. 2 for the status of ratification of the main international human rights treaties. 65

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In assessing the impact of the Convention and its future potential the ideological and political context of its birth requires to be kept in mind. The Convention's provisions, although expressed to be concerned with the elimination of all forms of racial discrimination in all countries, sought at the same time to target colour discrimination and colonialism, in line with the wishes of its African and Soviet sponsors. Thus, the Convention condemns doctrines of racial superiority and singles out apartheid in South Africa, as well as segregation between white and black practised in the European colonies and the United States.7° The monitoring body established under the Convention, the Committee on the Elimination of Racial Discrimination (hereinafter 'CERD'), was also given a function under Article 15 to comment upon petitions alleging racial discrimination received from the inhabitants of Trust and Non-Self Governing Territories by the Committee on Decolonization.7 1 The tension between the immediate concern with colonialism and apartheid and the objective of universal elimination of all forms of racial and ethnic discrimination finds reflection in the language of the Convention as well as in its interpretation, by both states parties and the Committee. It is a tension that has persisted over the history of the ICERD. The assumption that racism was solely about the consequences of Western imperialism inevitably placed the Convention in a fraught political environment. The other human rights treaties that followed ICERD had also to function in the Cold War years, but none had to function in quite such an emotional and ideological environment as had ICERD. The ICERD was the prototype for the later international human rights conventions in its scheme of implementation. 72 In addition to fulfilling obligations at the domestic level, states undertake to report periodically to CERD on 'legislative, judicial, administrative or other measures' undertaken to fulfil the Convention's requirements. 73 The Convention scheme of implementation also provides for an inter-state and an individual complaint procedure. However, to date the main vehicle of implementation of the Convention, as with the other international instruments, is through state reporting, and the main activity of CERD is, and has been, the examination of such reports in conjunction with the states parties. Experience with these 70 As noted above, the serious issue of the resurgence of anti-Semitism was sidelined for political reasons. 71 For reasons of space this account will not consider the Committee's limited functions under Article 15. With the virtual achievement of decolonization, this always marginal duty of the CERD has accordingly dwindled. See Partsch, 'The Committee on the Elimination of Racial Discrimination', in Alston, supra n. 35, 339, at 348. 72 On the treaty system as a whole, see P. Alston and J. Crawford (eds), The Future of UN Human Rights Treaty Monitoring (2000). 73 Article 9(1) ICERD.

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implementation procedures is discussed below as part of an analysis of the work of the Committee. But before considering implementation, the substantive provisions of the Convention require to be set out.

(i) The Definition of Racial Discrimination At the time of the Convention's adoption most states understood racism politically, applying to cases such as the treatment of the black population of the USA, apartheid in South Africa, and to practices associated with colonialism. The general definition of racial discrimination in ICERD, however, does not focus exclusively on such state policies and practices. It covers all acts of discrimination based on motivations of a racial nature, including acts of individuals or groups, and calls the state to account whenever such activities impinge, either currently or potentially, upon the enjoyment of fundamental human rights. The drafters of the Convention followed closely the definition of discrimination adopted by the ILO and UNESCO in the Conventions that dealt with discrimination in employment and education, respectively.7 4 Article 1 (1) defines racial discrimination as [a]ny 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. The definition is concerned with racial discrimination, not racism as such. Doctrines of racial superiority, however, are condemned in the Convention. 75 Such doctrines at the time were based on biological theories that divided humankind into racial categories according to supposed genetic differences. 76 The efforts undertaken in the post-war era to discredit doctrines of racial 74 The ILO Discrimination (Employment and Occupation) Convention No. 111 (1958), Article l(a) defines 'discrimination' as including '[a]ny distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation', supra n. 53. The UNESCO Convention against Discrimination in Education (1960), Article 1, defines 'discrimination' as including 'any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or ocher opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education .. .', supra n. 52. 75 See ICERD preambular para. 6 and Article 4. 76 Racism as a systematic and rationalized hostility based on biological differences is a nineteenth-century phenomenon (Gobineau's Essay on the Inequality ofHuman Races appeared in 1854). See M. Banton, International Action Against Racial Discrimination (I 996), at 52.

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superiority as scientifically false were successful, but did not solve the question as to the nature of difference. Thus, the concept of race, a concept that is at odds with the idea of human unity that the UN intended to promote, survives. 77 While the concept of race could not be dropped altogether from the ICERD definition, it was broadened to include the core mischiefs at which the struggle against racism is aimed-discrimination based on colour, descent, national and ethnic origin. 78 Colour tackles discrimination based on physical criteria. 'Descent', a term unique to ICERD, has been interpreted to include the notion of caste and denotes social origin, while 'national or ethnic origin' refers to prejudice that stems from linguistic, cultural, and historical differences. 79 The definition is thus not limited to objective physical characteristics. It also captures subjective as well as socio-economic variables connected with racism. The definition is capable of addressing past, present, and future expressions of racism: be it white supremacism, casteism, ethnonationalism or what is called neo-racism, a version which no longer presupposes biological difference but emphasizes allegedly insurmountable differences between cultures. It also protects every group that has a defined collective identity and for the purpose of which self-identification is the relevant criterion. 80

77 Efforts at UN level to discredit doctrines of racial superiority started as early as 1948, when ECOSOC requested that the UNESCO develop a programme to disseminate scientific facts that would counter commonly held racial prejudices (ECOSOC Res. 116 (VI) B(iii)). UNESCO contributed with its work from the 1950s to the 1970s by convening committees of prominent scientists who were asked to discuss the racial problem and to make known the scientific facts about race. These efforts led to four statements on the concept of race (reprinted in the Encyclopedia of Human Rights (1996) 2nd edn. at 1215-23) and culminated in the adoption, in 1978, of the UNESCO Declaration on Race and Racial Prejudice, which states in the strongest terms that '(a]II human beings belong to a single species ... any theory which involves the claim that racial or ethnic groups are inherently superior ... has no scientific foundation and is contrary to the moral and ethical principles of humanity'. In International Instruments, supra n. 2, at 132. 78 During debates in the Sub-Commission it became clear that 'while, as UNESCO had shown, there was no such thing as race, the term "race" would have to be used in the drafr convention', Lerner, supra n. 64, at 49. 79 While the words 'colour', 'descent', and 'ethnic origin' did not represent major difficulties, a serious problem arose with regard to the term 'national origin' due to it being widely used as relating to nationality or citizenship. To avoid any misinterpretation, paragraphs 2 and 3 were added to Article 1 excluding distinctions between citizens and non-citizens from the ambit of the definition, ibid., at 49. 80 See CERD General Recommendation VIII (38th session, 1990): '(T)he ways in which individuals are identified as being members of a particular racial or ethnic group ... shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned.' Thus, as a general rule, a group's consciousness of its own separate identity determines whether it is a 'race' for the purposes of the Convention's protections.

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(ii) The Scope of the Convention's Substantive Provisions The Convention's provisions are far-reaching. It obliges states 'to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among races' (Article 2(1)). This general goal is then developed by reference to five objectives for the achievement of which states parties are required • not to engage directly, or through their public institutions at all levels, in acts or practices of racial discrimination; • not to sponsor, defend, or support racial discrimination by any persons or organizations; • to amend, rescind, or nullify legislation which creates or perpetuates racial discrimination; • to prohibit, by all appropriate means, racial discrimination by any persons, group, or organization; • to encourage the elimination of barriers through integrationalist multiracial organizations and movements and discourage anything which tends to strengthen racial division. 81 The prohibition of racial discrimination covers the full range of rights including civil, political, economic, social, and cultural rights. It includes rights pertaining to the private sphere, such as marriage, inheritance, as well as freedom of thought, conscience, and religion-a unique feature in those early days of standard setting. 82 The scope of Article 5, containing a non-exhaustive list of these rights, had to be clarified to allay apprehensions of states entering these obligations. The obligations of the states parties did not refer to the granting of these rights, but only to admitting no racial discrimination in their enjoyment to the extent that they were guaranteed in the domestic law of the states parties. 83 To ensure equality under the law and to guarantee effective protection, Article 6 calls for courts and other state institutions to provide for just and adequate reparation or satisfaction for any damage suffered as a result of racial discrimination. A number of provisions were, and still are, considered radical in their application and attracted a high number of reservations. Assuring states parties' compliance has proven particularly difficult with regard to Article 4 requiring Article 2(1)(a)-(e) ICERD. On the drafting history of the substantive prov1S1ons of ICERD, see Partsch, 'Elimination of Racial Discrimination in the Enjoyment of Civil and Political Rights', 14 Texas International Law journal (1979) 191. 83 The Committee debated this issue extensively in 1973, adopting a statement for inclusion in its Report to the General Assembly. See Buergenthal, 'Implementing the UN Racial Convention', 12 Texas International Law Journal (1977) 187, at 207. 81

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the prohibition and criminalization of hate speech and the suppression of organizations that incite racial hatred. 84 Article 4 has long been considered by CERD as the key article of the Convention. 85 It recognizes the power of hate propaganda to foster prejudice and racial discrimination. However, the assumption that ideas generate attitudes which can be dispelled mainly by legislation is arguably contradicted by the Convention itself, when it requires states to combat prejudices that lead to racial discrimination through measures in the fields of teaching, education, culture, and information (Article 7). The focus to date in the practice of the Committee on the duty of states to legislate to combat racial discrimination may account for its almost total neglect of Article 7. Yet the latter is the key provision under the scheme of the Convention if states are to address the root causes of racism. 86 Unsurprisingly, a great deal of the Committee's early efforts to ensure compliance concentrated on what was the priority on the UN's human rights agenda and embodied in Article 3 of the Convention, the condemnation of apartheid and racial segregation. This resulted in the sometimes controversial practice of states being requested to submit information on political matters, i.e. regarding the status of their diplomatic, economic, and other relations with South Africa. 87

(a) Justified Distinctions: The Case ofNon-nationals The Convention allows for distinctions to be made between citizens and noncitizens (Article 1(2)) and gives due regard to state sovereignty in matters of citizenship, nationality, and naturalization, provided states do not discriminate against categories of foreigners (Article 1(3)). However, other articles have been interpreted to ensure that non-citizens are not completely unprotected under the Convention. CERD's practice therefore has been to construe Article 1(2) narrowly. 88 The inclusion of non-citizens within the reach of Article 4 has never been disputed nor that equality before the law must be guaranteed to 'everyone' without distinction as to race or ethnic 84 A conspicuous number of reservations and/or declarations were entered in respect of Article 4 by states acceding to the Convention. The issue is discussed further below. 85 See CERD General Recommendation XV (42nd session, 1993), reiterating that '[w]hen [ICERD] was being adopted, Article 4 was seen as central to the struggle against racial discrimination.' 86 See Farrior, The Neglected Pillar: The "Teaching Tolerance" Provision of the International Convention on the Elimination of All Forms of Racial Discrimination', 5 Journal of International and Comparative Law (1999) 291. 87 See CERD General Recommendation III (6th session, 1972). The practice of asking states parties to report under Article 9(1) on their relations with South Africa had been formally endorsed by the General Assembly, which had been pursuing a policy of isolating South Africa since 1962. See supra n. 41, and Buergenthal, supra n. 83, at 195. 88 Mahalic and Malahic, 'The Limitation Provisions of the International Convention for the Elimination of All Forms of Racial Discrimination', 9 HRQ (1987) 74, at 75.

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origin (Article 5). The distinction established in Article I (2) should have no impact on the implementation of Article 6 and access to remedies. The fact that many non-nationals, such as immigrants, are visibly different from the majority of the population makes them easier targets of racial discrimination and racism. The Convention would be undermined if the protections it affords did not extend to such categories of people. CERD has recognized that states have the sovereign right to impose distinctions between citizens and non-citizens insofar as their purpose or effect contains no element of discrimination based on race, colour, descent, or national or ethnic origin. 89 It has also held that Article I (2) 'must not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in other [human rights] instruments .. .'. 9 CERD has been consistent in asking states to report on the status of non-citizens, particularly migrant workers and refugees, who usually belong to a single ethnic group and face hostility, contempt, and social and economic ostracism. Although CERD has no authority under Article I (2) to require states parties to guarantee non-citizens rights comparable to those enjoyed by citizens, the social inclusion of migrants is pivotal in combating racism and xenophobia. Migrant workers suffer discrimination even when protective legislation is devised for them and their sense of security is seriously endangered by the threat of expulsion common to all aliens. Despite the many instruments adopted at international level to promote their rights and protect them from abuse, there is a stark reluctance to tackle discrimination against migrant workers. 91 None of the instruments has reached a significant number of ratifications and, most disconcertingly, are ignored by the main immigrantreceiving countries-the affluent Western countries. The treatment of refugees has been discussed primarily under the ambit of Article 1(3). Committee members have asked for statistical breakdowns by race and country of origin of refugees having applied for, been granted, lost, or been refused asylum or citizenship. There have also been inquiries con-

°

Ibid., at 76. General Recommendation XI on non-citizens (42nd session, 1993), para. 3. Under international standards of human rights, justified distinctions between citizens and noncitizens are limited. With regard to the non-discrimination standards under ICCPR, see Human Rights Committee General Comment 15 on the position of aliens under the Covenant (27th session, 1986), para. 2: The general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens.' 91 International protection for migrants is provided by ILO Convention No. 97 (revised) on Migration for Employment and ILO Convention No. 143 on Migrant Workers (Supplementary Provisions). Neither has been widely ratified. The International Convention on the Rights of All Migrant Workers and Members of Their Families, adopted by the General Assembly in 1990, provides more extensive rights than the ILO Conventions, but has not yet entered into force. For the status of ratification of this latter Convention, see Report of the Secretary-General, N55/205 (2000). 89 9

° CERD

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cerning refugees' rehabilitation and resettlement programmes as well as measures to defuse racial tensions resulting from the presence of refugees. 92 States parties' restrictive immigration and asylum policies, including visa systems and other measures aimed at curbing illegal immigration, have been reviewed under this provision. The CERD has sought to assess their disparate impact on people, such as people of colour, or whether discrimination against refugees based on their country of origin was involved. Despite many evident abuses the Committee has been constrained in its criticism. 93 There has also been a reluctance to question naturalization laws, where they grant citizens of favoured nations preferential treatment. Denial to access to citizenship is, however, frequently directed against ethnic minorities, even when legislation does not say so. The absence of clear international norms on acquisition of citizenship complicates the problem considerably. 94 There is scope under the Convention for calling on states to facilitate naturalization of non-nationals as a means of combating prejudices. These are fostered by the legal status of longstanding residents from ethnic or other minority groups as second-class citizens. There is also a need to support and create more opportunities for legal migration and ensuring that international human rights standards are integrated into immigration and asylum policies and practices.

(b) Equality in Fact: Special Measures and Affirmative Action Under the Convention Racial equality is a free-standing right in the Convention, extending to all human rights and fundamental freedoms, whatever their source. 95 The special feature of the Convention is that it promotes not only equality in law but also equality in fact, in order to allow different ethnic, racial, and national groups the same social development. The goal of de facto equality is reflected in several provisions of the Convention, calling for 'special measures' (Article 2(2)), allowing distinctions for the purpose of affirmative action (Article 1(4) ), and prohibiting distinctions which have the purpose or effect of impairing the recognition, enjoyment, and exercise, 'on an equal footing', of human rights and fundamental freedoms (Article 1). 96 The latter provision addresses Mahalic, supra n. 88, at 81. European states commonly deflect criticism invoking the Schengen Agreement, that results in asylum and immigration policies becoming largely a community matter. See, for instance, at CERD's 56th session the consideration of the 12th, 13th, and 14th report, of France (continued), para. 10-11. CERD/C/SR.1374 of 6 July 2000. 94 The right to a nationality is enshrined in Article 15(1) UDHR. 95 Meron, supra n. 62, at 286. Cf. Article 14 ECHR (equality as auxiliary to substantive rights). However, the recently adopted Protocol 12 ECHR, which opened for signature on 4 Nov. 2000, provides for a free-standing equality right, supra n. 19. 96 See also Article 2(l)(c) asking states parties to take effective measures to review policies and amend, rescind, or nullify laws and regulations which have the effect of creating or perpetuating racial discrimination. On affirmative action, see Fottrell, 'Ever Decreasing Circles: 92

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indirect discrimination, the disproportionate impact of apparently neutral practices on individuals or groups who differ in race, colour, descent, national or ethnic origin from the majority of the population. The Convention thus advocates a notion of equality of outcome, which is sensitive to the starting point of people, to past disadvantages which have created systematic patterns of discrimination in many societies, the effects of which may be continued or even exacerbated by facially neutral policies. The Convention's purpose of achieving substantive equality in principle goes beyond the formal equality concept where the majority of national constitutions stop and which assumes conformity with the dominant culture. It rather recognizes the need to accommodate diversity and to redress disadvantage emanating from past discriminatory policies and practices, which have developed into structural patterns of injustice. Where racism is institutionalized in society, as is often the case, claims to formal equality are oflimited avail. More effective results may be expected from taking special measures or affirmative action policies with a view of affording opportunities for self-development and advancement of groups who following long periods of persistent racial discrimination and marginalisation, have been denied such opportunities. 97 The reversal of the effects of historical inequities is a positive duty on states parties. Article 2(2) requires states to take 'when circumstances so warrant' 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'. However, the precise nature of the duty is unclear and CERD has done little to elucidate the scope of affirmative action under the treaty. 98 The lack of precision and standards in ICERD's provision is, however, common to other non-discrimination treaties that envisage affirmative action policies. International human rights bodies, other than stating the existence of the obligation under the relevant treaties, have not to date seriously debated on the merits or modalities of such policies. 99 Moreover, because the benefits of such policies cannot be immediately appreciated-the reversal of historical Affirmative Action and Special Measures under International Law', in D. Fottrell and B. Bowring (eds), Minority and Group Rights in the New Millennium (I 999) 183. 97 Van Boven, 'Are Remedies and Reparations Effectively Available to Victims of Racial Discrimination?', 4 Connect (Fall 2000) 5. 98 Fottrell, supra n. 96, at 192. 99 See CEDAW, Article 4(1): 'Adoption by State Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved', in International Instruments, supra n. 15. With regard to the ICCPR, the Human Rights Committee General Comment 18 on non-discrimination (37th session, 1989), para. 10, addresses the question of

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inequities being inevitably a long-term process-domestic implementation of affirmative action has exposed the concept to criticism as constituting positive or reverse discrimination, thus rendering it legally contested and politically intractable. The experience of the country which has done most to pursue affirmative action, the United States, is not encouraging in this regard. 100 Compounding the lack of standards, Article 2(2) provides no safeguards against the use of measures that, in promoting the adequate development of racial groups, constitute assimilationist policies. The ICERD approach is integrationist, as reflected in the provision that the maintenance of separate rights for vulnerable groups is only admitted for a limited period (Article 2(2) second sentence). States are further enjoined under Article 2(l)(e) 'to encourage, where appropriate, integrationalist multi-racial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division'. These provisions reflect the predominant focus of the Convention on discrimination based on colour. Increased attention to the interests of ethnic minorities has resulted in the adoption of specific international and regional instruments recognizing the right to maintain ethnic identity. 101 In line with these developments, CERD has recently endorsed the importance of recognition by governments of the concrete rights of ethnic or linguistic groups to the preservation of their identity. 102 special measures, stating that 'the principle of equality sometimes requires states parries to take affirmative action in order to diminish or eliminate the conditions which cause or help to perpetuate discrimination prohibited in the Covenant. For example in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the state should take specific action to correct those conditions. Such action may involve granting for a time to part of the population concerned certain preferential treatment in specific matters as compared to the rest of the population. However as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.' 100 On the legal and political debates in the US, the first country to have undertaken widescale affirmative action programmes over the last thirty years, see Fottrell, supra n. 96, at 193-202. 101 See, e.g., UNESCO 1978 Declaration on Race and Racial Prejudice, supra n. 77; UN 1992 Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, supra n. 17; Council of Europe 1995 Framework Convention for the Protection of National Minorities, ETS 157. Compare also with Article 27 ICCPR that at least to a modest extent recognizes the interests of ethnic minorities, supra n. 14. 102 CERD General Recommendation XXI (48th session, 1996) on the right to selfdetermination: 'In accordance with article 2 of the [ICERD] and other relevant international documents, Governments should be sensitive towards the rights of persons belonging to ethnic groups, particularly their right to lead lives of dignity, to preserve their culture, to share equitably the fruits of national growth and to play their part in the Government of the country of which they are citizens. Also, Governments should consider, within their respective constitutional frameworks, vesting persons belonging to ethnic or linguistic groups comprised of their citizens, where appropriate, with the right to engage in activities which are particularly relevant to the preservation of the identity of such persons or groups.'

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{c) Public and Private Reach ofthe Convention One central provision ofICERD, Article 2(1)(d), provides that '[e]ach state party shall prohibit and bring to an end by all appropriate means, including legislation as required by the circumstances, racial discrimination by any person, group or organization'. The question of determining the reach of the Convention when nongovernmental or private actors are involved has been much debated. 103 Reference is frequently made to the overarching definition of racial discrimination referring to racial discriminatory acts occurring within 'public life'. This appears to exclude private acts from the scope of the Convention. More convincingly, it has been suggested that public life in Article 1 should mean the opposite of private life, rather than referring only to governmental actions. 104 This interpretation is supported by the guarantees contained elsewhere in the Convention, such as the right of access to any place or service intended for the use by the general public (Article S(f)), the right to work and to housing (Article S(e)). CERD practice has made it clear that these guarantees extend to employment in private enterprises, to housing provided by private owners, or admission to private clubs. The Committee has stated that 'to the extent that private institutions influence the exercise of rights or the availability of opportunities, the State Party must ensure that the result has neither the purpose nor the effect of creating or perpetuating racial discrimination'. 105 The issue of the private/public reach of the Convention's provisions is of continuing importance considering the extent to which governments, through programmes of privatization, are divesting themselves from regulating basic public facilities and services and the ever more prominent role played by private actors on a global level. 106 The phenomenon of 'shrinking government' blurs the distinction between spheres of public conduct that are the subject of governmental regulation and spheres of private conduct that are not. Such trends detract from states' accountability and go in the opposite direction to what is needed to counteract racism. The dichotomy between private and public realms also bears upon other obligations in the Convention, such as the requirement not to 'sponsor, defend and support racial discrimination by any persons or organizations' (Article 2(1)(6)), or to penalize the dissemination of racist ideas and participation in organizations that advocate racial hatred (Article 4). The 104 Ibid., at 293. See, among others, Meron, supra n. 62, at 291-5. CERD General Recommendation XX (48th session, 1996), para. 5. 106 For an analysis of these developments, see Globalization in the Context of Increased Incidents of Racism, Racial Discrimination and Xenophobia, Working paper submitted ro the Sub-Commission by J. Oloka-Onyango as a contribution to the preparation of the World Conference against Racism. E/CN.4/Sub.2/ 1999/8 (1999). 103 105

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Convention leaves open the question of how to strike a balance between individual freedom and government restriction in fulfilling these obligations. (d) Governmental Interference in Private Conduct: Hate Speech Article 4 requires that states prohibit not only advocacy of hatred, but also 'all dissemination of ideas based on racial superiority or hatred', and the provision of 'any assistance to racist activities, including financing thereof' (Article 4(a)). Organizations which promote and incite racial discrimination are to be declared illegal and prohibited by law, and participation in such organizations or activities is to be made punishable as well (Article 4(6)). Public authorities and institutions at national and local level are enjoined from promoting or inciting racial discrimination (Article 4(c)). Article 4 mirrors Article 20(2) of the Covenant on Civil and Political Rights (ICCPR) which prohibits any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. But it goes further than Article 20. States must outlaw not only advocacy of hatred, but also 'all dissemination of ideas based on racial superiority or hatred'. The Article requires the suppression of organizations advocating racial hatred. It further requires that incitement be made an offence, as well as the financial support to racist activities of any kind. CERD has consistently held that Article 4 is mandatory in that it requires comprehensive legislative action to implement its terms. 107 The prohibition of the dissemination of ideas based on racial superiority or hatred irrespective of intent or consequences has, however, proved in practice to be difficult for governments. In specific cases, proof of an intention to stir up racial hatred or proof that racial hatred was actually stirred up as a result is hard to obtain. 108 The same difficulty emerges with respect to outlawing racist organizations. Legal systems in which criminal intention alone is not sufficient to outlaw an organization before that intention is translated into action face difficulties in implementing the required preventive steps against incitement to racial discrimination. 109 Criminalizing the expression of views-no matter how despicable-and participation in racist organizations dash with the rights to freedom of expression and association, recognized as fundamental human rights in all major 107 On implementation of Article 4, see CERD General Recommendation I (5th session, 1972), General Recommendation VII (32nd session, 1985), and General Recommendation XV (42nd session, 1993). 108 Hatred is a feeling, a state of mind and not a clearly established legal interest, as is the case of discrimination. See Lerner, 'Incitement in the Racial Convention; Reach and Shortcomings of Article 4', Israel Yearbook on Human Rights (1993) 1, at 8. See also Farrior, 'Molding the Matrix: The Historical and Theoretical Foundations of International Law Concerning Hate Speech', 14 Berkeley Journal ofInternational Law (1996) 48. 109 Lerner, supra n. 108, at 13.

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human rights instruments. 110 The concern that these requirements for change in domestic law in the proposed Convention would impair freedom of expression and association resulted in the inclusion of the 'due regard' clause. States undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, racial discrimination 'with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of [the] Convention'. 111 Freedom of expression and association are among the rights to be given 'due regard' in fashioning legislation to implement Article 4. The due regard clause did, however, not dispel the concern among a number of states that Article 4 was too sweeping and a conspicuous number of reservations were entered on this Article upon ratification. 112 The interpretation of the due regard clause and Article 4 as a whole is still unsettled. Some states have interpreted it as not imposing on a state party the obligation to take any action impairing the right to freedom of expression (notably, the United States), others have invoked the due regard clause to justify alternative sanctions to criminal liability. CERD considers that the due regard clause must be read in the light of the UDHR as a whole, where the right to free speech and association are not absolute but subject to limitations and arguably greater weight is given to freedom from discrimination. 113 However, the Committee has not always been unanimous with regard to the effects of the due regard clause in Article 4 and with the merits of criminalizing hate speech and racist organizations, recognizing that in some instances 110 See UDHR, Articles 19 and 20(1); ICCPR, Articles 19 and 21; ECHR, Articles 10 and 11; American Convention on Human Rights, Articles 13 and 16; The African Charter on Human and Peoples' Rights, Articles 9 and 10. In I. Brownlie (ed.), Basic Documents on Human Rights, 3rd edn. (1992). 111 ICERD, Article 4, first paragraph. 112 Some eighteen states parties to ICERD have entered reservations and/or interpretative declarations in respect of Article 4. Interpretative declarations were lodged, among others, by members of the Council of Europe on recommendation of the Committee of Ministers of the Council of Europe. See Resolution (68) 30 adopted by the Ministers' Deputies on 31 Oct. 1968. For the full texts of the reservations and/ or declarations, see CERD/C/60/Rev .3, 12 Feb. 1999. 113 See limitation clauses in the UDHR, Articles 29 and 30. In particular, Article 29(3) provides that the rights and freedoms set forth in the Declaration may in no case be exercised contrary to the purposes and principles of the United Nations. Being one of the purposes, as articulated in Article 1(3) of the Charter, the promotion of human rights for all without distinction, among others, as to race, it follows that under Article 29(3) UDHR no individual or group may exercise their rights to freedom of expression or association in a manner which vitiates the rule against racial discrimination. That the right to equality in international human rights law is so basic is confirmed, inter alia, by Article 4 ICCPR. While allowing derogation from substantive articles of the Covenant, among which those providing freedom of expression and association, it specifies that any measures taken in derogation of the Convention's provisions (where allowed) may not involve discrimination.

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the effect may run counter to the desired goal. 114 Public proceeding in a court may in fact inadvertently provide the offender with the opportunity to publicize his racist views. An organization driven underground by repressive measures might be much more dangerous than one allowed to act openly. A new challenge comes from the growth of racist propaganda on the Internet. 115 The particular characteristics of communication on the Internet makes state regulation relatively powerless to prevent the misuse of technology even in countries that want to do so. The discussion is largely limited to industrialized countries, where the overwhelming majority of Internet users are concentrated. There is a widening gulf across the Atlantic in attitudes toward curbing the Internet traffic that expresses racist extremism. Web sites banned in Europe, where in broad terms legislation against incitement to racial hatred is being used to cover expression on the Internet, are able to resurface from the haven of the United States, where they are protected under the constitutional guarantee of freedom of speech. 116 The need for international minimum standards for the legal treatment of racial hatred and xenophobia in cyberspace as well as a draft code of conduct for the Internet community is being widely debated at the international and regional level. 117 Among the measures envisaged to counteract racist 114 Divided comments from CERD members were, for instance, expressed over a hate speech case under the ECHR (jersild v Denmark, ECHR (1978) Series A, No. 19, 1). In chat case a television journalist was convicted of aiding and abetting the dissemination of racist speech through broadcasting an interview with young racists. Whilst some members of CERD welcomed the applicant's conviction as 'the clearest statement yet ... chat the right to protection against racial discrimination took precedence over the right to freedom of expression', others considered chat 'in such cases the faces needed to be considered in relation to both rights'. In the event, the European Court, in finding that the conviction of the journalise violated Article 10 and the guarantee of freedom of expression, considered its judgment compatible with Article 4 ICERD. See report of the Committee to the General Assembly, A/45/18, p. 21, para. 56. 11 5 Technical, legal, juridical aspects relating to the screening and prohibition of racist propaganda on the Internet have been extensively debated at the United Nations Seminar on the Role ofInternet in the Light ofthe Provisions ofthe International Convention on the Elimination ofAll Forms ofRacial Discrimination, Geneva, 10-14 Nov. I 997. Seen. 239 infra. Moreover, OHCHR has recently conducted consultations with member states, United Nations bodies, specialized agencies, intergovernmental and non-governmental organizations, on the use of the Internet co incite racism, xenophobia, and intolerance. The resulcing report has been submitted to the Preparatory Committee for the World Conference against Racism. A/CONF.189/ PC.1/5. 116 For an excellent overview on the legal and technical issues involved in counteracting the dissemination of racist messages via the Internet, see European Commission against Racism and Intolerance (ECRI), Legal Instruments to Combat Racism on the Internet, Report prepared by the Swiss Institute of Comparative Law, CRI(2000)27, Strasbourg, Aug. 2000. 117 See, for instance, the Action Plan on Promoting Safer Use of the Internet, Decision No. 276/1999/EC of the European Parliament and the Council of the European Union of 25 Jan. 1999.

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propaganda on the Internet are those which require ISPs (Internet Service Providers) to register web sites and their authors, and the introduction of Internet filtering programs.

(e) Remedies for Victims ofRacial Discrimination The right to a domestic remedy is a basic requirement of the international approach to human rights protection. Article 6 ICERD deals with effective protection and remedies, as well as just and adequate reparation or satisfaction for victims of racism and racial discrimination. The notion of effective remedies entails that recourse procedures should be simple, transparent, and accessible, based on awareness of the vulnerability of victims of racial acts, the fact that they are mostly ignorant of their rights and of linguistic and other barriers they often face in seeking legal remedies. The scrutiny of states' reports by CERD has brought home that in many cases effective remedies so defined are unavailable, particularly where victims belong to the most destitute and marginalized groups of society. 118 Nevertheless agreement on the priority of establishing practical and effective remedies to victims of racial discrimination-for example by providing for legal aid and assistance, providing standing for non-governmental organizations to assist victims during the legal process, or by alleviating the burden of proof-is a welcome development in current policy recommendations at international and regional level. 119 A new emphasis is being placed on the role of administrative or other bodies in enforcing anti-discrimination laws. In recent years there has been a growing number of specialized bodies set up in various countries aimed at combating discrimination and promoting equality. These bodies, according to the legal and administrative traditions of the countries in which they are established, have taken different forms-national commissions for racial equality, ombudsmen against ethnic discrimination, centres/offices for combating racism and promoting equal opportunities, or bodies having similar functions within a wider human rights mandate. 120 Their function varies from providing assistance in litigation to taking up the case on behalf of a 118 A comprehensive analysis on the issue of remedies with regard to victims of racial discrimination is provided by a former Committee member, Theo van Boven. See his background paper on 'Common problems linked to all remedies available to victims of racial discrimination' (HR/GVA/WCR/SEM.1/2000/BP.5), prepared for the United Nations Expert Seminar on Remedies Available to the Victims of Racial Discrimination, Xenophobia and Related Intolerance and on Good National Practices in this Field, held in Geneva 16-18 Feb. 2000. See n. 239 infra. 119 See, for instance, the report and recommendations of the Expert Seminar on Remedies above. A/CONF.189/PC.l/8. At the regional level, see ECRI, Compilation ofECRl's General Policy Recommendations, CRI(99)54, Strasbourg, Aug. 1999. 120 See ECRI, Good Practices: Specialized Bodies to Combat Racism, Xenophobia, AntiSemitism and Intolerance at National Level, CRI(99) 43, Apr. 1999.

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victim, or adjudicating complaints through amicable solutions or in binding and enforceable decisions. This approach shifts the focus from repressive measures and criminal sanctions to conciliatory measures and civil law remedies. It reflects an awareness that the reality of racial or ethnic discrimination is most often experienced in the denial of social and economic rights-especially in the fields of employment, housing, and health care. Alternative civil justice models may prevent the need to bring cases of discrimination to court and are often more effective than criminal prosecution in combating prejudice, promoting understanding and tolerance, and in protecting victims from retaliation. There is also scope under the Convention for specifically tailored group enforcement mechanisms. Where collective rights are involved-such as the case of indigenous peoples, Roma/Sintis, or other minority groups that are victims of entrenched and deeply rooted racism-individual complaints with a view of obtaining reparation are unlikely to secure structural changes in economic and social life. 121 However, the advocacy of remedial actions of this nature, or of any kind, needs to be accompanied by national educational policies directed at majority communities to promote understanding and tolerance. Such duties, mostly neglected, are set out for states under Article 7 ICERD.

(f) The Need to Address the Root Causes ofRacism-Article 7 The struggle against racism and racial discrimination over the history of ICERD has focused on the role of law. Priority has been given under the Convention to legislation intended to suppress propaganda, the dissemination of racist ideas, and the prohibition of organizations that advocate racist violence and hatred. States have been encouraged to rescind discriminatory statutes and regulations, to strengthen legal guarantees and remedies against racial discrimination and, more recently, to take positive or special measures designed to enable disadvantaged racial groups to enjoy their human rights and fundamental freedoms on an 'equal footing'. This approach was and remains an essential foundation. But law alone cannot address the problem of racism at its roots. Combating 'prejudices that lead to racism' is one of the goals of the Convention, which calls upon states 'to adopt immediate and effective measures, particularly in the field of teaching, education, culture and information'. 122 Efforts to implement this article both by the CERD and 121 See, with regard to the rights of indigenous peoples, CERD General Recommendation XXlII (51 st session, 1997) addressing the need of fair compensation for indigenous peoples, which should as far as possible take the form of lands and territories. 122 Article 7 ICERD. Doubts about over-reliance on the impact oflegislation in combating racism were forcefully expressed during the drafting process of the Convention by the United Kingdom delegate: 'Using legislation by itself was like cutting down a noxious weed above the ground and leaving the roots intact.' See Banton, supra n. 76, at 59.

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reporting states have been meagre. After many years of total neglect, guidelines on implementation of Article 7 were developed with assistance from UNESCO, but states' reports have continued to treat it as a marginal issue, as does much of the literature on the Convention. 123 Article 7 specifies the fields in which states parties are to adopt measures in order to end racial prejudice and promote understanding. The little that states have reported on implementation of Article 7 has tended to focus on the education of schoolchildren. 124 But Article 7 does not address educational measures only in the school setting. It includes broader education and training such as the training of teachers, law enforcement officials, judges, and other public figures. 125 The reference to culture and information addresses persons, associations, and institutions that shape opinions, through, for example, cultural events, in sport and, not least, the media. Article 7 deserves deeper attention both from governments and CERD. The duties it requires of states reflect the thesis that racist ideas are not innate, but are transmitted to the young through others: parents, peers, teachers, politicians, and other opinion leaders. Unless such ideas are tackled at their source, they will continue to be handed down from generation to generation. 126 The importance of full implementation of these provisions for the long-term success of the goals of ICERD and the right to equality cannot be underestimated.

(iii) The Committee on the Elimination of Racial Discrimination The Committee on the Elimination of Racial Discrimination (CERD) was established in 1970. It comprises eighteen members elected by the states parties from among their nationals. The Convention requires that those elected as members be experts of high moral standing ... who shall serve in their personal capacity, consideration being given to equitable geographical distribution and to the representation of the different forms of civilization as well as of the principal legal systems. 127 123 See Wolfrum, 'The Committee on the Elimination of Racial Discrimination', 3 Max Planck UNYB (1999) 489, at 504; Farrior, supra n. 86, at 294. CERD issued an early General Recommendation on the implementation of Article 7, bur rather than specifying the types of

steps states should take, it simply implores states to report on the measures they have taken. CERD, General Recommendation V (15th session, 1977). 124 See Joint Working Paper on Article 7 of the International Convention on the Elimination ofAll Forms ofRacial Discrimination, UN Doc. E/CN .4/Sub.2/1998/4 (1998), para. 46. 125 See also CERD General Recommendation XIII (42nd session, 1993) on the training of law enforcement officials in the protection of human rights, urging states to include information on implementation of this recommendation in their periodic reports. 126 See the Study on the Implementation ofArticle 7 of the International Convention on the Elimination of All Forms of Racial Discrimination, prepared by the Special Rapporteur, Mr Georges Tenekides. A/CONF.119/11 (1983). 127 Article 8(1) ICERD.

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Members or experts are elected for a term of four years that can be renewed. 128 The Committee is charged with the task of overseeing the implementation of the Convention and to report on its work to the General Assembly through the Secretary General. It can offer suggestions and general recommendations to the states parties on implementation. 129 It has the competence to receive and respond to complaints from states and individuals. 130 Study of the Committee has been considerably aided by the existence of a substantial body of literature including the writings of former and serving Committee members. 131 One drawback is that all accounts of the functioning of the Committee have been written by members from Western countries. A fuller assessment would profit from the perspectives of those elected to represent other regional groupings. 132 How effective has CERD proved to be? Any assessment of an international initiative over a period of thirty years to eliminate racial discrimination of every kind in over 150 states must inevitably be tentative, even speculative. That caveat made, it seems clear that conflicting ideas within the Committee as to the purposes of the Convention, the global geopolitical context in which it developed, and the attributes of Committee members combined to limit its capacities to achieve a great deal. That at least seems to be true for the first twenty years of the Committee's existence. The Committee had permanent members of the Soviet Bloc countries whose governments in their reports insisted that racism was a function of imperialism and colonialism and therefore did not arise in their jurisdictions. Experts from these countries did not question or challenge such submissions. On the other hand the other protagonist in the Cold War, the United States, remained aloof from the Convention while seeking to dismantle its own inheritance of racism and segregation suffered by black citizens through its own internal democratic and constitutional resources. One of the most perceptive writers on the Committee, and himself a former member, divides its story into the three decades during which it has functioned.133 During the first decade of the 1970s, states parties and the Committee came to terms with the full implications of the Convention especially for domestic legal change. Research has demonstrated that a substantial number of ratifying countries did incorporate at least some of the Convention's requirements in internal law. Thus, Australia passed the Racial 129 Ibid., Article 9(2). 130 Ibid., Articles 11-14. Article 8(5)(a) ICERD. For a book length study see Banton, supra n. 76. Also Banton, 'Decision-taking in the Committee on the Elimination of Racial Discrimination', in Alston and Crawford, supra n. 72, at 55-78; Partsch, supra n. 71, at 339-68. Wolfrum, supra n. 123. 132 It is regretted that it did not prove possible for reasons of time and resources to interview members of the Committee in preparing these lectures. Advice in conducting our research given by Mr Michael Banton (UK) is gratefully acknowledged. 133 Banton, supra n. 76, at 99-171. 128

131

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Discrimination Act 1975 prior to ratifying the ICERD and adopted the Convention's definition of racial discrimination in that Act. Costa Rica and Egypt, among others, adopted constitutional changes to incorporate prohibitions on racial discrimination. 134 At the same time, however, other countries insisted that they had ratified the treaty as an act of solidarity with those subject to apartheid and similar practices and saw no need to alter their laws as racial discrimination was unknown in their countries. 135 A review of the first forty-five states' reports submitted found that over half the states in question emphatically denied that any form of racial discrimination existed on their territories. 136 In the second decade, the 1980s, ICERD, and in particular its Committee, were rendered largely impotent due to the Cold War. There was extraordinary turnover in membership that militated against it achieving much impact through its dialogue with states. 137 The focus on the link between racism and anti-imperialism, both within CERD and the United Nations as a whole, frustrated any modest advances in the procedure and practice of implementation that might have been achieved. 138 ICERD sessions had to be cancelled on a number of occasions due to a lack of funds. 139 From the end of the Cold War and throughout the 1990s, CERD has been able to recover momentum and to address its mandate with greater commitment and energy. 140 It became more involved with the other treaty bodies through the annual meeting of Chair Persons of the Treaty Bodies and has in consequence implemented a number of reforms and innovations in its work. These changes are reflected in the enhanced quality of discussion of state reports, in the adoption of improved concluding observations, 134 See N. Lerner, The U.N. Convention on the Elimination of A!! Forms of Racial Discrimination (1980), at 165-211. 136 Ibid., at 106. 135 Banton, supra n. 76, at 105. 137 Forty-three members occupied the eighteen seats between 1970 and 1978 and forty-one in the ten-year period from 1979 to 1988. The Convention allowed for casual vacancies to be filled by another expert from among the state's experts. There was no provision for election for such vacancies. In contrast, the Human Rights Committee under the ICCPR, which came into force six years after the ICERD, required an election to be held for casual vacancies. The ICCPR also directed that the need for lawyers on the Committee should be factored into the election of eligible Committee members. In the last decade the Committee has increased it effectiveness as a result of a considerably reduced turnover, Banton, supra n. 76, at 142. 138 Banton notes, referring to the first eighteen years of the Committee's existence, that 'CERD was in no position to act against any but a pariah state. Chile and Israel found themselves in such a position and South Africa would have done had that country become a state party. There was insufficient trust within the Committee for it to take decisions other than by consensus and this permitted any small minority to exercise a veto. Many members saw their obligations in diplomatic terms and perhaps could do little else while the opposition between East and West hung over so many of the decisions that had to be taken.' Banton, supra n. 76, at 137. 140 Banton, supra n. 76, at 142. 139 Partsch, supra n. 71, at 346.

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as well as in the quality of recent General Recommendations adopted under Article 9. The CERD has also fashioned a preventive procedure and, reversing traditional attitudes, has become more open to involvement of nongovernmental organizations (NGOs) in its work. Thus in August 2000, the Committee held a two-day seminar on discrimination against Roma in which for the first time NGOs were permitted to attend and make interventions. 141 (a) Membership ofthe Committee One characteristic of the Committee throughout its thirty-year existence has been the practice of many states to appoint civil servants, diplomats, or retired diplomats as members. The practice reflected the assumption of the large number of states, who swiftly ratified the Convention, that it was essentially about apartheid and institutional racism in countries other than their own. While the diplomatic presence has been said to have been useful in the early years of the Committee, especially in bringing governments to understand the nature of the legal obligations they had undertaken, it is also the case that the effective independence of the Committee was in constant question. 142 Concern that committee members, especially country rapporteurs, were subject to pressure from other diplomats led the CERD to adopt a General Recommendation expressing its alarm. 143 At its fiftieth session in 1996, CERD secured majority support from among its members for an amendment to its rules of procedure to ensure for the future that 'as a general rule' experts would not participate in the discussions of their home states' reports. It is current practice to agree the text of Concluding Observations in public session, a change intended to inhibit participation by a member who may be a national of the state under discussion. 144 The range of professional backgrounds found on the Committee has often been cited a particular strength by its members. 145 However, the expanded range of the Committee's work, such as its focus on ethnic minorities and indigenous peoples, alongside the growing awareness of the complexity of the task of ending discrimination in many countries, suggests that there is a strong case for the appointment of new expertise. Such expertise should include specialists in anti-discrimination law as well as persons experienced in implementing anti-discrimination programmes including in the field of education. 141 The discussion led to the adoption ofCERD General Recommendation XXVII (57th session, 2000), ouclining a number of measures that governments of relevant states parties should take to improve the situation of the Roma. 142 Banton, supra n. 76, at 101; Partsch, supra n. 71, at 340-1; Wolfrum, supra n. 123, at 494. 143 General Recommendation IX (38th session, 1990). 144 Wolfrum, supra n. 123, at 509. 145 Ibid., at 494.

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(b) Committee Procedures

The Committee meets twice a year in March and August to review state reports. Since 1996 it has assessed on average ten reports in each session. A crucial early point of procedure was whether reports would be examined in the presence or absence of the states parties. At the direction of the General Assembly the procedure was settled that states should be present. 146 This decision, followed by the later treaty bodies, allowed what is perhaps the most important feature of the treaty monitoring system to develop, that of dialogue between the Committee and reporting states. 147 It is now hard to envisage that any impact could have been achieved by the CERD without face to face debate between the representatives of states and the experts. Since 1988 the appointment of special rapporteurs from among its members with responsibility for leading the review of each country report has deepened the quality of the exchange between state representatives and the Committee. The disputed question of access to other information than that provided by governments-in particular information from NGOs-was a source of tension and disagreement as it was to become with other treaty bodies. The entitlement of members to have such access and to refer to it was achieved for CERD through following the precedent of the other human rights treaty bodies. 148 Some members also resisted the acceptance of written information from the specialized agencies, ILO and UNESCO, when dealing with state reports. A solution was found whereby these bodies provided their material to Committee members interested through the Secretariat. 149 ILO and UNESCO representatives attend CERD sessions as observers. It appears that the contribution which is valued by the CERD has been made by the ILO, especially in respect of its Convention on Discrimination in Employment. 150 The potential role of UNESCO in respect of Article 7 could have been considerable. But in practice that has not proved to be the case. 151 From 1991 the Committee has also adopted a system in step with the reforms proposed by the Independent Expert on the functioning of the treaty bodies, in respect of Concluding Observations following its examination of a state report. 152 This document is now discussed and agreed in public session in the absence of the state party-and a longstanding contentious issue, already noted-without the participation of any Committee member who is 147 Partsch, supra n. 71, at 340-1. A/RES/2783 (XXVI) (1971). See Decision 1 (XL), 'in examining the reports of States parties, members of the Committee must have access, as independent experts, to all other sources of information, governmental and non-governmental' and Wolfrum, supra n. 123, at 507. 150 Ibid., at 344. 149 Partsch, supra n. 71, at 344-5. 151 Lerner, supran. 134, at 148. 152 See Final Report on Enhancing the Long Term Effectiveness ofthe United Nations Human Rights Treaty System (the Alston Report). UN Doc. E/CN.4/1997/74 (1996). 146 148

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a national of the state in question. The Observations broadly follow a similar layout to the conclusions of the other monitoring committees and are comparable in their focus and quality to those of other treaty bodies. 153 They achieve their purpose of identifying for states exactly where further action has to be undertaken in the implementation of its Convention commitments. (c) Overdue Reports

The Convention lays down that states parties must report every two years to the CERD. 154 That interval has clearly proved, in the light of the expansion of the treaty system, too onerous on states. The interval provided for periodic reporting by states in the later treaties was longer. 155 Not without hesitation the CERD agreed to a new practice requiring submission of a comprehensive report every four years updated by short reports every two years. 156 This has been welcomed by states. It has enabled the CERD to reduce the backlog in consideration of reports it has received. But it has not solved the problem of non-submission of reports. ICERD is not alone in having this problem. Delay in the submission of reports by governments is shared with other monitoring committees. However, ICERD is the treaty with the most significant problems (see Fig. 1). Of the 1,235 reports from the main human rights treaties as of 31 March 2000, ICERD accounts for the greatest number. 157 Part of the explanation lies in the cumulative delays of a large number of reports, that are overdue from a number of states (see Fig. 2). Nevertheless, the disproportionate delinquency with regard to ICERD must raise the suspicion that states take their reporting requirement under ICERD less seriously than with respect to the other treaty bodies. The CERD has taken action. In 1991 it proposed a procedure to the General Assembly that, in the case of states with seriously overdue reports, it would undertake a periodic review based upon the last reports submitted. This initiative was endorsed by the General Assembly and has had positive effects in inveigling some states to submit and to cooperate. 158 The CERD has also pressed that technical assistance be made available to states experiencing difficulties in preparing reports in which the Committee members would participate.159 Nevertheless the problem remains unresolved and serious. 153 See, for example, 57th Session, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Norway. CERD/C/57/CPR.3/Add.12, 10 Aug. 2000. 154 Anicle 9(1) ICERD. 155 Cf. ICCPR, Anicle 40(1) 'whenever the Committee so requests'; Convention against Torture (CAT), Article 19(1) 'every four years'; CEDAW, Article 18(1)(b) 'every four years'; Convention on the Rights of the Child (CRC), Article 44(l)(b) 'every five years'. 156 Parcsch, supra n. 71, at 367. 157 See Recent Reporting History under the Principal International Human Rights Instruments, HRI/GEN/4 of27 Apr. 2000. 158 GA Res. 49/ 178 (I 994), para. 6 and see Banton, supra n. 76, at 152. 159 General Recommendation XI (39th session, 1991).

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Treaty

ICESCR

ICCPR

ICERD

CEDAW

CAT

CRC

Total

Overdue reports State parties

160 142

142 144

430 156

236 165

112 119

155 191

1235 917

14

12

34

18

12

10

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Number of overdue reports

Figure 2. ICERD overdue reports (d) General Recommendations

Under Article 9, paragraph 2, of ICERD the Committee may make suggestions and General Recommendations prompted by its work in examining state reports. Recommendations are to be reported to the General Assembly along with any comments on them from state parties. The Committee over its life has made some twenty-seven General Recommendations. 160 None appear to have provoked a response from the states' parties. As with similar 16° For a compilation of the Committee's General Recommendations, see CERD/C7365 ofll Feb. 1999.

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statements by the other treaty bodies, the recommendations enable it to both indicate to states the Committee's view of the scope of Convention provisions as a guide in their reporting and to offer guidance on the legal interpretation of the Convention. 161 It is accepted that General Recommendations do not bind the states parties, but they do bind the members of the Committee who have agreed them. 162 The recommendations to date cover most provisions under the Convention and in recent years have also dealt with wider issues. In 1994, the CERD called for the establishment of an international tribunal to prosecute crimes against humanity in the light of 'racially and ethnically motivated massacres and atrocities occurring in different parts of the world' . 163 It has also drafted an important statement on self-determination, secession, and the claims of ethnic and religious minorities. 164 Other recent General Recommendations include two on indigenous peoples and one on gender related dimensions of racial discrimination. 165 Perhaps the largest gap to be filled concerns the definition of racial discrimination and Article 1 of the Convention. Given the history of the Convention and the priority given to combating apartheid, the CERD has shied away from comment on the definition of racial discrimination. It was plausible to assume that the definition offered in section I of the Convention offered adequate guidance. However, in the post-apartheid world there is a need for a comprehensive clarification and elaboration of the scope of the Convention's protections. This would provide not only clear guidance to states but also to others, including those who are targets of discrimination in many settings. Ideally, preparation of such a statement should be agreed with the Special Rapporteur on Contemporary Forms of Racism. (e) Complaint Procedures

Inter-state complaint mechanism Article 11 of ICERD enables any state party to bring to the attention of the Committee its concern that another state party is failing to give effect to the Convention. The procedure does not require a separate declaration of acceptance by governments. 166 The state-to-state complaint option under 161 The ultimate arbiter of the meaning of the Convention is the International Court of Justice which, under ICERD Article 22, has jurisdiction over disputes between the states parties relating to the 'interpretation or application' of the Convention that are not settled 'by negotiation or by the procedures expressly provided for' by the Convention. Jurisdiction of the ICJ has been excluded via reservation by twenty-two states parties to ICERD. See CERD/C/60/Rev. 3 of 12 Feb. 1999. 162 Meron, supra n. 62, at 285. 163 General Recommendation XVIII (44th session, 1994). 164 General Recommendation XXI (48th session, 1996). 165 See General Recommendation XXIII (51st session, 1997); General Recommendation XXIV (55th session, 1999); General Recommendation XXV (56th session, 2000). 166 As is the case, for example, with the ICCPR (see Article 41).

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Article 11 of ICERD has never been utilized. As with similar procedures in other human rights instruments, it must be regarded, for now at least, as a dead letter. The theory on which it was based, that the states parties have both a collective interest and a responsibility for the elimination of racial discrimination including in other jurisdictions, has not been borne out in practice. The collective involvement of states parties arises only from their participation in elections of members of CERD and in their participation in the General Assembly to which CERD makes an annual report. On occasion the CERD has received notice of what it has termed 'disguised complaints' about other states' actions as part of the periodic report under Article 9 of the Convention. 167 The Committee has suggested in such cases formal resort to the Article 11 procedure but with no results. 168 It has been suggested that the explanation for the failure of states to have resort to the interstate mechanism arises from their awareness that the Committee had no power to legally adjudicate on a state's complaint. The Committee may only recommend a friendly settlement and has no enforcement powers. 169 However, the more likely explanation, as with other state-to-state complaint mechanisms in the major human rights treaties, is political while also reflecting an unwillingness shared by states to empower any quasi-judicial mechanism at the international level. Individual complaint mechanism Under Article 14 of the Convention, a state may make a declaration recognizing the competence of the CERD to receive through the Secretary General communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation of one of the rights set forth in the Convention. 170 The Article 14 complaint procedure came into force as early as 1982 with acceptance by ten states. 171 However, the increase since that date in the number of states providing recourse to the jurisdiction of the Committee has been minimal. To date thirty out of 156 states parties only have made a declaration under Article 14. 172 As a result there has been a disappointing and limited practice achieved to date. Over the almost two 167 Disguised complaints have included Iraq's claim that it could not report on the operation of the Convention in northern Iraq because of the establishment of safe havens for Kurds during the Gulf War. 168 See General Recommendation XVI concerning the application of Article 9 of the Convention (42nd session, 1993). 169 See Wolfrum, supra n. 123, at 511. Also Buergenthal, supra n. 83, at 202. 170 On the procedural rules governing Article 14 communications, see M. O'Flaherty, Human Rights and the U.N Practice Before the Treaty Bodies (1996), at 104-7. 171 Article 14(9) ICERD. 172 As of 27 Aug. 1999, twenty-eight states had made the declaration under Article 14, A/54/18 paras. 1 and 2. The Yugoslav Republic of Macedonia and Portugal joined in 2000. CERD/C/SR.1372 and CERD/C/SR.1400.

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decades the Committee has considered only a dozen communications. 173 All have been from developed Western countries. None have raised s ystemic issues of violation. However, several complaints about alleged racial discrimination in the operation of social security benefits, in housing, 174 or in respect of employment give a clear indication of the considerable potential of the procedure for victims. 175 The explanation for the low level of acceptance of the individual complaint mechanism can only be a matter of speculation. But it is difficult to avoid the conclusion that states remain unconvinced that the CERD should develop such a quasi-judicial role. This is disappointing for the development of the Convention and international human rights protection as a whole. It could be argued that the individual complaint procedure under the First Optional Protocol to the International Covenant on Civil and Political Rights offers an alternative forum. The Human Rights Committee can address inequalities and racial discrimination under the Protocol. The Committee on Economic, Social and Cultural Rights may also address racial and ethnic discrimination in the future, should the proposed individual complaint mechanism under that Covenant come into effect. But neither body can interpret the ICERD and the duties imposed on states by that Convention. The international treaty system, 173 See Compilation of Opinions and Decisions Adopted under Article 14 of the Convention, CERD/C/390 of5 June 2000. 174 One case involving, among ochers, alleged violations of the right co housing (Article 5(e)(iii)) and freedom of residence (Article 5(d)(i)) is L.K v The Netherlands (No. 4/1994), Opinion of 16 Mar. 1993. The case concerned threats of racial violence by local inhabitants hostile co foreigners caking up residence in their neighbourhood. The faces were not disputed and the case focused on the expediency principle, thereby finding that instances of racial discrimination have co be prosecuted with particular attention, inter alia, by ensuring the speedy disposal of such cases by domestic judicial instances. 175 See, for instance, Yilmaz-Dogan v the Netherlands (No. 1/1984), Opinion of 10 Aug. 1988, where the Committee found a violation of Article 5(e)(i) concerning equality before the law in respect of the right co work and protection against unemployment. The petitioner's dismissal from employment, after a prolonged period of absenteeism owing co illness and childbirth, was based on the employer's unwillingness co extend sickness-leave benefits co her because of prejudices against foreign women workers. Alleged violations of the right to work under Article 5(e)(i) were also dealt with by the Committee in Diop v France (No. 2/1989), Opinion of 18 Mar. 1991; ZU.B.S. v Australia (No. 6/1996), Opinion of 26 Aug. 1999; Barbaro v Australia (No. 7/1995), Decision of Admissibility of 14 Aug. 1997; B.M.S. v Australia (No. 8/ 1996), Opinion of 12 Mar. 1999; D.S. v Sweden (No. 9/ 1997), Decision of Admissibility of 17 Aug. 1998. In Ziad Ben Ahmed Habassi v Denmark (No. 10/1997), Opinion of 26 Aug. 1999, the CERD found a violation of Article 2.1 (d) with respect to the Danish Bank's loan policy vis-a-vis foreign residents and chat it was necessary co ascertain whether or not the criteria applied involved racial discrimination, within the meaning of Article 1 of the Convention. In B.J v Denmark (No. l 7 /1999), Opinion of 17 Mar. 2000, that concerned an alleged violation of Article 5(1), the Committee supported the petitioner's request for economic compensation for the humiliation of having been refused access co a place of service for the use of the general public.

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as it has evolved, has established a separate role for the anti-discrimination instruments, on racial and sex discrimination, that is complementary to the other human rights conventions. 176 The encouragement of wider acceptance of the Article 14 procedure by states should be a priority for the Convention. 177

(f) Early Warning and Urgent Procedures In 1993, following a recommendation of the meeting of chairpersons of the treaty bodies, the CERD adopted new procedures concerned with prevention of violations of the Convention. 178 An early warning procedure was addressed to the prevention of ethnic or racial conflicts and an urgent action procedure was aimed at imminent or actual large-scale problems of serious racial or ethnic discrimination or conflict. In each case, the state in question is placed under the new procedure and remains on the agenda of the Committee at future sessions. These important initiatives have been invoked to date in respect of a range of situations in some fourteen countries, including Bosnia and Herzegovina, Kosovo, the Occupied Palestinian Territories, Algeria, Burundi, and Rwanda. 179 The actions which the Committee can take under the procedures include requesting the submission of a report, bringing the situation to the attention of others, including the High Commissioner for Human Rights, the Secretary General or indeed the General Assembly and the Security Council. Members have also undertaken Good-Offices missions both to Croatia and Yugoslavia. It is right that the CERD, given its mandate, should have sought to respond directly to some of the worst episodes of ethnic and racial conflict of the 1990s, such as have occurred in the Balkans and the Great Lakes region of east Africa. It is equally important for the future, given its accumulated knowledge and experience, that it should provide early warning to the international community over threatened ethnic conflict. But its capacity for positive influence on events must be acknowledged to be limited. CERD cannot itself become a vehicle for active conflict resolution. Its role should be rather to develop a more focused approach on the prevention of ethnic and racial discrimination based both on dialogue with reporting states and through the 176 A proposed optional protocol to the Convention on the Elimination of Discrimination against Women providing for an individual complaint procedure is pending before the UN Human Rights Commission. 177 A third procedure for monitoring implementation was created by Article 15 of the Convention, providing for cooperation between the Committee and competent United Nations bodies in matters of petitions from and reports concerning Non-Self-Governing Territories. See supra n. 71. 178 UN Doc. A/48/18 paras.15-19 and Annex 3. 179 For an account of the new preventive procedures, see Wolfrum, supra n. 123, at 513. Also Van Boven, 'Prevention, Early-warning and Urgent Procedures: A New Approach by the Committee on the Elimination of Racial Discrimination', in E. Demers and N. Schrijver (eds), Reflections on International Law from the Low Countries (I 998) I 65.

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expansion of the individual complaint mechanism. Subject to its primary role as a treaty monitoring body, CERD can best make a contribution in response to gross violation or threatened ethnic violence where it acts as a partner with others, including any relevant national or regional body as well as the UN Human Rights Commission's Special Rapporteur on Contemporary Forms of Racism. However, the prospects of achieving such cooperative action in the short term among all such bodies can only be described as poor given experience to date.

(g) Funding The capacity of the CERD to function effectively and creatively depends on its budget. That remains in crisis. 180 The finances of the CERD were entrusted under the Convention directly to the states who became parties, not to the UN regular budget. This decision apparently was intended to underscore the independence of the Committee. It has not worked out, however, quite like that. States, although subject to a modest levy, have been late or have failed to pay their contributions. This resulted in a series of sessions being cancelled in the 1980s, only halted when as a stop gap the Secretary General with General Assembly approval provided interim funding. An amendment to ICERD to enable its budget to be paid from the regular UN budget, although approved by the meeting of the states parties and the General Assembly, has still not come into effect. 181 The amendment requires approval in accordance with domestic legal procedures of all states which are parties to ICERD. But a decade later many states have yet to take the necessary steps. Similar funding concerns afflict the one other UN institution established to respond to racism in the world in addition to ICERD, the Special Rapporteur of the Human Rights Commission, which will next be discussed. V. THE SPECIAL RAPPORTEUR ON CONTEMPORARY FORMS

OF RACISM, RACIAL DISCRIMINATION, XENOPHOBIA, AND RELATED INTOLERANCE The institution of thematic rapporteurs by the UN Human Rights Commission, tasked with the investigation, analysis and, in some cases, the authority to respond to violation, has been a key innovation in the human rights competence of the United Nations. One such is the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and 180 ICERD is not alone in its long-term financing problems. All treaty bodies have similar problems. See Schmidt, 'Servicing and Financing Human Rights Supervisory Bodies', in Alston and Crawford, supra n. 72, at 481. 181 This was proposed in the first report on treaty reform of the independent expert, Mr Philip Alston. UN Doc. A/44/668 (1989).

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Related Intolerance, first appointed in 1993. 182 The selection of topics of human rights concern by the Commission justifying the appointment of rapporteurs is often infused by political considerations. The need for a thematic rapporteur on racism was pressed by Turkey. Among Turkey's concerns was the treatment of Turkish citizens in Germany. But there was a general concern shared by many developing countries that the focus on human rights violations, including ethnic discrimination in the developing world, should be balanced by attention to racism, especially against immigrants, in the developed world. 183 The origins of the initiative can be traced to a report reviewing UN Decades against Racism undertaken for the Sub-Commission on Prevention of Discrimination and Protection of Minorities by Asbjorn Eide. 184 His study confirmed the grim reality of the rise of anti-Semitism as well as racism and extreme nationalism in Europe and the developed world as a whole, directed at minorities, indigenous peoples, migrant workers, and other vulnerable groups. The Sub-Commission thereafter sought an overview study from the Secretary General of current trends in racism discrimination, intolerance, and xenophobia. 185 The Secretary General's report, considered at the forty-fourth session (1992) of the Sub-Commission, confirmed the 'resurgence of racism and xenophobia throughout the world and more particularly in Europe, the United States and Australia'. 186 At its forty-ninth session in 1993, the Commission, acting on a recommendation of the Sub-Commission, approved the appointment for a three-year term of a special rapporteur on contemporary forms of racism. 187 The discussion of the scope of the mandate in the Commission reflected horse-trading between the sponsors (Turkey and Pakistan) and the European Union states. The outcome was a mandate to cover all countries, but with a particular focus on developed countries and the situation of vulnerable groups, especially 182 This account of the Special Rapporteur draws heavily on the research undertaken by Bernhard Schaefer, graduate student. We wish to acknowledge with gratitude his contribution. See Schaefer, 'The United Nations Struggle against Racism and Racial Discrimination-The Contriburion of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance', Papers in the Theory and Practice of Human Rights, University of Essex, 2001 (forthcoming). 183 According to a report in The Times (12 Dec. 1994), the appointment reflected the 'resentment many Third World countries felt at what they saw as the "disproportionate" focus on abuse in the developed world, and the relative silence over race relations in richer, industrialized countries. Turkey, especially, was piqued at the focus on its treatment of Kurds, and wanted more publicity for the treatment of Turkish migrant workers in Germany.' Cited in Banton, supra n. 76, at 41. 184 Study on the Achievements Made and Obstacles Encountered During the Decades to Combat Racism and Racial Discrimination, E/CN.4/Sub.2/1989/8/ and Add.I. The UN Decades to Combat Racism are dealt with in Part VI, infra. 185

187

Sub-Commission Res. 1990/2. CHR Res. 1993/20.

186

E/CN.4/Sub.2/1992/11, para. 142.

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migrant workers. Mr Robert Dossou (Benin) was initially appointed to the post but on his being made foreign minister, Mr Maurice Glele Ahanhanzo, also from Benin, was appointed on 7 December 1993. From the perspective of the effectiveness of the UN approach to racism as a whole, it is depressing that this otherwise useful initiative was taken without any consultation with the long established treaty body-the CERD. That the proposal for a special rapporteur was promoted mainly by countries that were not parties to the ICERD is hardly an explanation. The Turkish sponsor stressed the limitations of the treaty mechanism in dealing with the reporting of racist incidents on an ongoing basis. He also argued for the need to monitor developments in countries that had not ratified ICERD. 188 These were legitimate points. The existence of a special thematic rapporteur alongside treaty bodies dealing with the same subject area is not unique. 189 But had the proposal been seen by the CERD and its reactions included in the Commission discussion, the potential contribution of the special rapporteur to a coherent UN human rights strategy towards new forms of racism might have been advanced. In particular, a plan of cooperative and complementary action between both mechanisms could have been endorsed by the Commission. Exchanges have occurred between CERD and the Special Rapporteur on cooperation. But they do not appear to date to have been successful. The question of cooperation is discussed further below.

(i) Anti-Semitism and Islamophobia The Special Rapporteur's mandate was extended and clarified by the Commission in 1994. It now embraces 'incidents of contemporary forms of racism, racial discrimination, any form of discrimination against Blacks, Arabs, and Muslims, xenophobia, negrophobia, anti-Semitism, and related intolerance'. 190 This language reflects the Arab-Israeli conflict. It was not possible to get agreement to the Western group proposal that would have added anti-Semitism as one focus of the proposed mandate. The same issue had arisen in the same way in the 1960s over the drafting of ICERD. 191 Arab rejection then of a reference to anti-Semitism concerned any implication that it might involve political recognition oflsrael. 192 In 1993, with the hopes for the Oslo peace process that began in that year, there appears to have been a change of attitude among states and a preparedness to end the often deliberate confusion between anti-Semitism, anti-Zionism, and other E/CN.4/Sub.2/1992/SR. l l, para. 30-1. For example, the Special Rapporteur on Torture and the UN Convention Against Torture. 19° CHR Res. 1994/64, para. 4. 191 See Part III(iv), infra. 192 Lerner, supra n. 134, at 2 and 72. 188 189

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political disagreements with Israel. The diplomatic solution found for the Special Rapporteur's mandate was to balance the reference to anti-Semitism with other targets of contemporary discrimination, in particular Arabs and Muslims. The result can be criticized in technical terms as inappropriate. 193 Nevertheless on the principles of openness and of naming racism where it occurs or is perceived to occur, the solution has proved to be a positive one. During the debate on the proposal to create the new position it was pointed out by the representative of the World Jewish Congress that the Commission had never before condemned anti-Semitism. 194 If this was true, the inclusion of anti-Semitism in the mandate constituted condemnation and the Special Rapporteur has in subsequent reports brought to the attention of the Commission the continuing shameful reality of hatred of and violence against Jews. 195 At the same time the Special Rapporteur has been able to also document discrimination against Arabs, a phenomenon captured in the new term 'Islamophobia'. 196 Although he has referred questions of 'discrimination against Muslims' in his mandate to the Special Rapporteur on Religious Intolerance, to avoid overlap he has recognized that, as with the case of anti-Semitism, it is not all that easy to distinguish religious and racially motivated prejudice. 197 The Special Rapporteur gained some early experience on the sensitivities of discussing the facts and prejudices that inform racism in his first reports. His setting out of what was reported to him about Jews led to expression of concern by several Jewish organizations and the Israeli Government. 198 While praising his work in general, they noted that such statements 'reinforced hateful anti-Semitic stereotypes'. The Rapporteur, in his own defence, noted that he had adopted the same approach in reporting the facts of prejudice against Blacks. 199 In his next report he set out an extended quotation from the Israeli Government that laid some of the blame for attacks against Jews in Europe at the feet of 'Muslim extremists' and a claim that the same extremists 'were turning to the Qur' an as a primary anti-Jewish source'. 200 This brought a protest from the Organization of the Islamic Conference, an unprecedented condemnation from the Human Rights Commission, and a decision of the Commission requesting its Chairman 'to ask the Special Rapporteur to take 193 Specification can suggest that other forms of discrimination are excluded from the purview of a mandate that is in principle concerned with all contemporary forms of racial and ethnic discrimination. 194 E/CN.4/1994/SR.9, para. 6. The Sub-Commission condemned anti-Semitism in 1960. See supra n. 61, and Banton, supra n. 76, at 53. 195 Anti-Semitism is defined by the Special Rapporteur as 'the despising of Jews' which 'can be considered to be one of the root causes of racial and religious hatred'. A/49/677, para. 149. 198 A/49/677, para. 111. 197 A/49/677, para. 17. 196 E/CN.4/1998/79, para. 39. 1 99 A/50/476, paras 10-17. 200 E/CN.4/1997/71, para. 27 andA/52/471, paras 6-7.

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corrective action'. 201 While the Special Rapporteur commented that it was not for him to censor a government communication, he did delete a sentence of his report. 202 This development in turn led to the meeting of special rapporteurs in 1997 at which it was recorded that there was a 'consensus among the participants that it was inappropriate for the Commission to request a special rapporteur to amend his report. It was clearly stressed that special rapporteurs were responsible for the content of their reports and that the Commission could criticize the substance of a report.' 203 Professsor van Boven has commented, with no doubt an eye to the forthcoming World Conference on Racism, that 'such discord in the struggle against racism and racial discrimination is in stark contrast with the unity of action that the women's movement demonstrated in the process leading to the World Conference on Human Rights at Vienna in 1993 and the 1995 Fourth World Conference on Women in Beijing'. 204 Nevertheless the fact that discord and disagreement exist needs to be faced, as does the depressing reality of pervasive ethnic and racial hostility in developed and developing world. The contribution of the Special Rapporteur, whether intentionally or not, has been positive in removing the diplomatic veil from that reality. (ii) Assessment

The Special Rapporteur has had his mandate renewed and has been engaged upon it for six years. He has submitted annual reports to the Commission and to the General Assembly. He has also undertaken a range of country studies based on visits to those countries. What assessment can be made on his contribution to date? There can be no doubt that the work carried out by Mr Glele Ahanhanzo has been useful. His initial or preliminary report offered some tentative definitions of the broad phenomena he had been asked to report, including racism, racial discrimination, and xenophobia. 205 Analytical depth may be wanting but the clear distinction between institutional racism, as reflected in governmental policies such as apartheid, and the multitude of racist practices that function without official sanction and despite legal prohibitions is useful for understanding contemporary racism. His initial reports are also important in conveying the complexity of racism and its often subtle and covert expression. Thus, while the core idea remains that of belief in a hierarchy of races, 201 203

205

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he notes that there has been a shift from biological to cultural explanations among those who espouse such doctrines. At the same time he notes that not all ethnic conflict and discrimination is the working out of belief in racial superiority. Ethnic groups differ and it can be competition over resources and the manipulation of awareness of difference that leads to discrimination, xenophobia, and violence. (a) Annual Reports

His annual reports presented to the Commission and to the General Assembly provide a limited but undoubtedly authentic view of the reality of racial discrimination, prejudice, and violence experienced by ordinary people in many countries. The most useful function these reports perform is in keeping the Commission and the General Assembly aware of the manifold and ever-changing expressions of racism and racial intolerance. Typically annual reports include a summary of activities, a section on current examples of racism, xenophobia, and related intolerance in different countries, measures taken by governments and public institutions, the initiatives of civil society organizations in combating racism, along with conclusions and recommendations. He reports on incidents of racism and racial discrimination in general, as well as against Blacks and Arabs, and he details information on anti-Semitism, xenophobia, discrimination against women, and migrant workers. Following the appointment of a Special Rapporteur on the human rights of migrants in 1999, Mr Glele Ahanhanzo has dropped this subject from his report. 206 The Rapporteur has also included in his annual reports documentation on other targets of racial discrimination not specified in his mandate, including the Roma and indigenous peoples. The annual reports lack depth and have other limitations that are related to the failure to provide the human resources the Special Rapporteur needs for his work. Six years into his mandate he has not had the resources he requested to undertake his work. Repeated requests have been made by the Human Rights Commission and the General Assembly to the Secretary General for such support to no avail. 207A properly resourced mechanism could achieve much more. (b) Country Missions

The Special Rapporteur has undertaken some eleven country studies to date. 208 These field missions are intended to allow him 'to assess the conditions actually 206 The Special Rapporteur on the human rights of migrants, CHR Res. 1999/44, para. 3. For her first report, see E/CN.4/2000/82. 207 See, for example, N49/677, para. 50-1; E/CN.4/1995/78. All special procedures suffer similar administrative, financial, and personnel problems. 208 In chronological order: USA, Brazil, Germany, France, the United Kingdom, Colombia, Kuwait, South Africa, Hungary, the Czech Republic, and Romania.

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prevailing in a country by giving him direct access to first hand reports and to the dialogue established with the authorities of the countries in question and key figures in civil society'. 209 The authority to undertake such country studies deriving from a Special Rapporteur's mandate is one of the distinct advantages of this mechanism. The Special Rapporteur has taken full advantage of the opportunities provided in these missions both to meet governmental and nongovernmental representatives, to visit prisons and holding camps, to meet with victims of racial discrimination and with the media. It is not possible to consider these missions or the reports resulting from them in detail in the confines of this chapter. 210 Only a few will be noted here. The first mission undertaken was to the United States in 1994, producing the first UN study of racism and racial discrimination in that country. 21 1 The report is noteworthy for its in depth coverage of continued serious questions of racial discrimination, including in respect of the death penalty, the question of police violence, the activities of racist organizations, and the issue of hate speech. The study resulting from his visit to Brazil deserves mention for the quality of its analysis. 212 As the Rapporteur notes, Brazil is perceived by the international community as a positive example of ethnic and racial integration. While it is true that intermingling of the races-'Whites', 'Blacks', and 'Indians' -has made classification by race difficult, the report shows that nevertheless pervasive and subtle economic and social discrimination persists, based on a 'colour hierarchy'. He was struck, as all observers must be, by the dramatic contrast between the rich and poor in Brazil and the link between poverty and colour. 213 His reports on Germany, France, and the United Kingdom bring out common concerns over ever more stringent immigration and asylum legislation, as well as issues of anti-Semitism, police violence, and prejudice against racial minorities. 214 Finally, reference should be made to the Rapporteur's visit to South Africa, a country whose former apartheid governmental system had been the focus of international anti-racism activities for almost half a century. His report records the continuing difficulties of transition to a democratic society, as well as new trends of racism and xenophobia. As regards the latter he noted that the presence of xenophobia directed at 'coloured' immigrants was increasing not only within the white population but also among the black majority. 215 210 See for a detailed account, Schaefer, supra n. 182. A/49/677, para. 46. E/CN.4/1995/78/Add. l; (A/50/476, paras 18-20). 213 Ibid., para. 74(1). 212 E/CN.4/1996/72/Add. l. 214 See Germany, Sept. 1995, E/CN.4/1996/Add. 1; France, Sept.-Oct. 1995, E/CN.4/ 1996/72/Add.3; United Kingdom, Nov. 1995, E/CN.4/1996/72/Add.4. 215 Feb. 1995, E/CN.4/1996/72/Add.2. 209

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In so far as one purpose of such visits is to inform the international community in more depth of the issues related to both racial discrimination and the efforts to abate or eliminate it, the country studies certainly succeed in that goal. It should also be noted that the Rapporteur, whose mandate was created primarily to focus on racism in the developed world, has in his country missions as in his annual reports chosen countries from different world regions. The Special Rapporteur has made efforts to assess the impact of his recommendations and suggestions to governments arising from his country missions in follow up procedures. Given the restraint on resources, these efforts are impressive and the evidence provided on the impact of his work credible. 216

(c) Cooperation with CERD and Other Bodies Resolution 1993/20, establishing the mandate of the Special Rapporteur, encouraged him to 'have an exchange of views with the various relevant mechanisms and treaty bodies within the United Nations system in order to further enhance their effectiveness and mutual cooperation'. There have been such exchanges of views with a range of bodies, but they have not led to mutual cooperation or enhanced effectiveness of those working against racial discrimination at the UN level. An initial meeting between the most relevant other body-the CERDand the Special Rapporteur was held in March 199 5. 21 7 There was agreement that the two mechanisms should work together in a complementary and reinforcing manner. The key advantages of the Rapporteur were that he had the authority to undertake visits to countries and, in addition, he could gather information on countries that had not ratified the ICERD. Concrete proposals for joint action in, for example, police training and mobilizing youth in the fight against racism were discussed. The Committee proposed that it could alert the Special Rapporteur to emergency situations through its new focus on the prevention of racial discrimination. The Special Rapporteur proposed that he could publicize the ICERD and the work of the Committee in his activities. Little if anything of this positive thinking has come to pass. CERD has noted that since the 1995 meeting cooperation has 'faltered'. 218 One former member has noted that the Special Rapporteur's reports on Germany, France, the United Kingdom, Kuwait, and Colombia completely ignored the concluding observations ofCERD with regard to the very same countries. 219 The 216 On follow up, see A/51/301, paras 8-15 and 47 (field missions implementation of recommendations) and E/CN.4/1996/72, paras 62-5 (provisional evaluation). See also the CHR Res. 1997/74, para. 33, inviting governments that have ratified ICERD and which the Special Rapporteur has visited to include information in their periodic reports on measures they have taken to implement his recommendations. 217 SeeA/50/476 and summary records of the meeting CERD/C/SR.1095. 219 Van Boven, supra n. 66, at 261. 218 A/52/18, para. 666.

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Committee concluded in its 1999 report to the General Assembly that the Special Rapporteur 'appears to completely overlook the relevance of the Convention on the Elimination of All Forms of Racial Discrimination and the work of the Committee'. 220 The Special Rapporteur also participated in a joint meeting of CERD and the Sub-Commission in August 1995. 221 In that year he also met with the Bureau of the European Commission against Racism and Intolerance and UNESCO, in both cases to discuss cooperation. 222 Little evidence is available of any practical outcomes of these contacts in the Special Rapporteur's work. Some of the explanation for the failure of any synergy to develop with other bodies following the appointment of the Special Rapporteur may be found in the poor internal coordination between the relevant members of the human rights secretariat at the UN, a problem compounded by insufficient staff and funding. Given the seriousness of the human rights challenge that racism offers, it is unacceptable that the few mechanisms charged with responding to that challenge appear to function in isolation, and duplicate each other's role where they might build on their comparative advantages. Something is seriously wrong when, as admitted by the Special Rapporteur, a number of countries from whom he requested information replied by enclosing their periodic reports already submitted under ICERD which contained the information he had requested. 223 It is equally wrong that the Special Rapporteur's mission reports on the countries he has visited ignore data already available in periodic reports under the Convention. 224 As inexcusable is his failure to incorporate in a number of his own reports CERD Concluding Observations in respect of countries he has visited. 225 In contrast it should be noted that CERD members are provided with any relevant reports of the Special Rapporteur when considering a state report. 226 The credibility of the entire international human rights system is put at risk by such self-evident examples of lack of cooperation and of a common strategy.

VI. THE UN PROGRAMME OF DECADES AND WORLD CONFERENCES TO COMBAT RACISM AND RACIAL DISCRIMINATION The United Nations has pursued an ambitious programme of international action, of Decades and World Conferences over the last thirty years with the 221 SeeN50/476, para. 33. A/52/18, para. 666. 223 E/CN.4/2000/16, para. 5. E/CN.4/1996/72, paras 5-10. 224 As noted by the CERD, A/52/18, para. 666. 225 His reports on Germany, France, United Kingdom, Colombia, and Kuwait ignored the CERD recommendations on those countries. 226 Van Boven, E.CN.4/1999/WG.l/BP.7, n. 25. 220

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goal of the total and unconditional elimination of racism and racial discrimination throughout the world. The General Assembly, however, has acknowledged in repeated resolutions the failure of this vast programme. 227 On the launch of the Third Decade for Action to Combat Racism and Racial Discrimination in 1993, the Assembly noted with grave concern that 'the principal objectives of the previous two Decades have not been attained and that millions of human beings continue to this day to be victims of varied forms of racism and racial discrimination .. .'. 228 Other resolutions have lamented that 'at various levels ... [racism is] showing signs of increase'. 229 As the Third Decade draws to an end, little interest or support has been shown by the international community in its fate, as evidenced by the paucity of funds contributed to the Trust Fund for the Decade's Programme of Action. 230 These global activities stem from an initiative of the former Soviet Union beginning in 1971 when it succeeded in having that year declared the International Year to Combat Racism and Racial Discrimination. 231 As a follow-up to the International Year, the General Assembly designated the ten-year period beginning 10 December 1973 as the Decade for Action to Combat Racism and Racial Discrimination. It also approved a Programme of Action for the Decade calling upon member states to cooperate in every possible way in its implementation. 232 The programme set out activities to be undertaken at national, regional, and international levels, and included the idea of convening a World Conference on combating racism and racial discrimination. That conference was held in 1978. For the latest such admission, see GA Res. 54/154 of29 Feb. 2000. GA Res. 48/91 (1993). 229 See GA Res. 51/81 (1997); GA Res. 52/11 (1998); GA Res. 52/132 (1999); GA Res. 54/154 (2000). 230 Lack of resources impeded the implementation of many activities of the Decades. A Trust Fund for the Programme for the Decade of Action was instituted in 1973 in application of para. 17 of the Programme of Action for the first Decade and re-established in 1983, in the framework of the Programme of Action for the second Decade. Contributions to the Fund have been scarce and remained below the levels hoped for, despite repeated appeals to governments (see A/47/77 of 1992 paras 12 and 20, A/50/136 of 1996 para. 22, A/51/81 of 1997 para. 16, A/52/111 of 1998 paras 11 and 12). Finally, A/53/132 of 1999, para. 22, requests the Secretary General to make provisions for financing the activities of the Programme of Action from the UN regular budget as a vital contribution to the World Conference. 231 See also Resolution VII of the International Conference on Human Rights held in Tehran, Iran, in 1968 calling for the establishment of a new United Nations programme on racial discrimination. For the text of the Proclamation of Tehran, and resolutions, from the Final Act of the International Conference, see UN Doc. A/CONF.32/41. The Proclamation, adopted unanimously at the Tehran Conference, includes a reaffirmation of the Universal Declaration of Human Rights. It thus constitutes the first major endorsement of the UDHR by the Eastern Bloc, that had abstained when it was adopted in 1948, as well as by many newly independent countries. 232 GA Res. 3057 (XXVIII) (1973) and the Programme of Action for the Decade annexed to the resolution. 227 228

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A Second Decade (1983-93) was proclaimed on the recommendation of the Second World Conference to combat racism and racial discrimination, which took place in 1983. 233 The purpose of the Second World Conference was to evaluate the work undertaken during the First Decade and to chart new measures where necessary. 234 Both World Conferences to date crumbled under political controversy. The agenda of both Conferences was dominated by South Africa and the Middle East. Highest priority was given to combating apartheid. Israel, along with South Africa, was singled out for special condemnation. 235 The Israel-Arab conflict was central to the failure not only of the Conferences but also of the Decades as a whole. In 1975 a General Assembly resolution described Zionism as a form of racial discrimination. 236 The 'infamous resolution' provoked the withdrawal of the US and Israel from the Programme for the First Decade. Other Western countries, while remaining involved, opposed what they considered a deliberate diversion from the fight against racism. The Second Decade commenced in 1983 with the international community divided along the same lines of confrontation. The comprehensive and farreaching measures envisaged in the second Programme of Action-in the field of education, teaching, and training, in the protection of minorities, indigenous populations, migrant workers, and in the establishment of recourse procedures for victims-came to nothing. The Programme did not attract funds from those Western states that contributed most to the UN budget. The onset of the Third Decade (1993-2003) held out hope of a new approach. 237 The Iron Curtain dividing East and West had fallen, a democratic transition was under way in South Africa, and the peace process in the Middle East had taken off. Discussion in the General Assembly reflected a change in tone, and a shift of focus from condemnation of racist regimes to a recognition that discriminatory practices based on culture, nationality, religion, or language affected states throughout the world. The 1993 World Conference on Human Rights in Vienna had moved the question of equality GA Res. 38/14 (1983). A study on the achievements made and obstacles encountered during the First Decade was entrusted by the Sub-Commission to Asbjorn Eide. E/CN.4/Sub.2/1989/8/Add. l (1989). See supra n. 184. 235 See Reports of the 1978 and 1983 World Conferences to Combat Racism and Racial Discrimination, A/CONF.92/40 and NCONF.119/26, respectively. Para. 18 of the 1978 Declaration (NCONF.92/40) states: 'The Conference condemns the existing and increasing relations between the Zionist State of Israel and the racist regime of South Africa, ... ' . Para. 19 expresses deep regret for the situation of Palestinians, calling on Israel to cease all practices of racial discrimination against them. These statements are reiterated, although in a less strong language, in the 1983 Declaration, NCONF.119/26, paras 18 and 19. 236 GA Res. 3379 (XXX) (1975), formally revoked by GA Res. 46/86 (1991). 237 GA Res. 48/9 (1993) and Programme of Action annexed. The Programme of Action was revised by GA Res. 49/ l 46 of 1994 dropping measures related to apartheid. 233

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up the human rights agenda and the conflict in the Former Yugoslavia brought home how racism could lead to such extreme practices as ethnic cleansing. 238 The new (revised) Programme of Action for the Third Decade reflecting budget constraints is far less ambitious in scope than those that have gone before. But as its pared down programme still depends on voluntary contributions to the Trust Fund there is little scope for optimism. A review of the period 1994-2000 shows that out of a dozen seminars envisaged in the Programme, only five have so far been held. 239 Planned research into the causes of the new manifestations of racism and racial discrimination does not appear to have been undertaken. The Third Decade may be rescued in its final phase by the momentum generated by the forthcoming (third) World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, to be held in South Africa in 2001, to the preparation of which the activities of the Decade's Programme have been focused. 240 The Resolution convening the Conference places emphasis on the need to address in a comprehensive manner all forms of racism and racial discrimination and to focus on actionoriented and practical measures to eradicate racism, including measures of prevention, education, and protection and the provision of effective remedies. 241 It stressed the importance of taking a gender perspective into account 238 See Vienna Declaration and Programme of Action and the text concerning the elimination of racism, NCONF.157/23 (1993), Part II B. 239 These are: Seminar on the Implementation of the International Convention on the Elimination ofAll Forms of Racial Discrimination with Particular Reference to Articles 4 and 6, E/CN.4/1997/68/Add. l; Seminar on the Ro/,e ofthe Internet in the Light ofthe Provisions ofthe International Convention on the Elimination of All Forms of Racial Discrimination, E/CN.4/1998/77/Add.2; Seminar on Immigration, Racism and Racial Discrimination, E/CN.4/1998/77/Add.l; Seminar of Experts on Racism, Refugees and Multiethnic States, NCONF.189/PC. 1/9; Expert Seminar on Remedies Available to the Victims ofActs of Racism, Racial Discrimination, Xenophobia and Related Intokrance and on Good National Practices in this Field, NCONF.189/PC.1/8. See also the final draft of the Model National Legislation for the Guidance of Governments in the Enactment of Further Legislation Against Racial Discrimination (HR/PUB/96/2). On the non-implementation of the Plan of Action, see also the recent reports submitted to the General Assembly by the Secretary-General, N52/528 and N53/305. 240 The Office of the High Commissioner for Human Rights is to serve as a focal point of coordination. Before the decision of the General Assembly to convene the (third) World Conference against Racism, no focal point existed within the Office of the High Commissioner for Human Rights, which was in charge of the Third Decade. See GA Res. 54/154 (1999) welcoming the establishment of a racism project team within the OHCHR. 241 GA Res. 52/111 (1998). The first PrepCom (1-5 May, Geneva) adopted the draft provisional agenda based on five major World Conference themes, which are: 1. Sources, causes, forms and contemporary manifestations of racism, racial discrimination, xenophobia and related intolerance; 2. Victims of racism, racial discrimination, xenophobia and related intolerance; 3. Measures of prevention, education and protection aimed at the eradication of racism,

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throughout the preparations for and in the outcome of the World Conference. It encourages the organization of regional and national meetings in preparation for the event. 242 Unprecedented attention is given to the role of civil society and non-governmental organizations in contributing to a positive outcome for the Conference. 243 The year 2001 has been designated by the General Assembly as the 'International Year of Mobilization against Racism, Racial Discrimination, Xenophobia, and Related Intolerance'. This decision is intended to draw the world's attention to the objectives of the World Conference and give new momentum to the political commitment to the elimination of racism. 244 VII. CONCLUSIONS This chapter has reviewed international human rights approaches to the problem of racism and racial discrimination over the last fifty years. It is a review that must conclude with a mixed verdict in terms of achievement. If success is to be measured in terms of the ending of racist and colonial regimes in the world, then there have been positive results. Apartheid is no more and decolonization is virtually complete. But if success is measured in terms of the global rejection of racist theory or beliefs and the elimination of all forms of racial and ethnic discrimination, the record is dismal. racial discrimination, xenophobia and related intolerance; 4. Provision of effective remedies, recourse, redress, [compensatory] and other measures at the national, regional and international levels, and; 5. Strategies to achieve full and effective equaliry, including international cooperation and enhancement of the United Nations and other international mechanisms in combating racism, racial discrimination, xenophobia and related intolerance, and follow-up. See the report of the Commission on Human Rights acting as the Preparatory Committee for the World Conference on its first session (1-5 May 2000), A/55/307 and annexed the decisions adopted by the first PrepCom. 242 Expert seminars on regional themes were held in Warsaw, Poland (5-7 July 2000), Bangkok, Thailand (5-7 Sept. 2000), Addis Ababa, Ethiopia (4-6 Oct. 2000), Santiago, Chile (25-27 Oct. 2000). Four regional preparatory conferences are also scheduled in Europe, Africa, the Americas, and Asia. The first one-the European Conference against Racismtook place in Strasbourg from 11-13 Oct. 2000. See the General Conclusions of the European Conference against Racism, EUROCONF (2000) 7 final, 16 Oct. 2000. 243 This is reflected in the appointment in late 1999 of an NGO liaison officer by the Secretariat for the World Conference against Racism, established within the Office of the High Commissioner for Human Rights. Another unprecedented aspect of NGO involvement in the World Conference is the funding ofNGOs by OHCHR to support their participation at three of the four regional conferences-the conferences caking place in Santiago for the Americas, Dakar for Africa, and Tehran for Asia. In addition, the OHCHR is funding four networking meetings for NGOs to permit chem to plan their input into the NGO Forum which will take place in South Africa just prior to the government conference. On the preparatory process for the World Conference, see A/55/285. 244 A/53/132 1999, para. 37.

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The pressure from the newly independent Asian and African countries, who became in the early 1960s the majority voice in the General Assembly, forced the pace on decolonization and apartheid. That pressure also laid the foundations of what has become the UN human rights system. But there was a cost. The struggle for racial equality and against discrimination became incorporated into the larger political and ideological conflicts of the Cold War. In the aftermath of the Cold War the issue of race threatens to be a continuing ideological battleground between developing and developed world. One indication was the clash at the first PrepCom held in Geneva for the 2001 World Conference, between the Western, African, and Latin American groups on the subject of compensation for the descendants of slaves and for indigenous populations. 245 The prospect of the World Conference reaching the necessary consensus for common action on a global basis towards the elimination of all forms of racial and ethnic discrimination appears remote. Perhaps the most important if modest goal for the forthcoming World Conference would be the acceptance that new thinking is required. It should start from the premise that the subject is more complex than is often acknowledged and needs a long-term approach. A beginning has been suggested with the proposal that the CERD should agree a statement on the scope of the definition of racial discrimination in the Convention. In particular there is a need to bring out the distinction between discrimination based on colour and other differences, including cultural, which attract hostility and discrimination. Whether it is appropriate to label all forms of ethnic discrimination as racism in a normative definition requires study. Another element of a new approach should be a renewed emphasis on equality as a central component of international human rights law. In concrete terms that would require linking the goal of eliminating racial discrimination with the efforts to eliminate other forms of discrimination. Exploring the common links as well as the overlap between different forms of group discrimination may help to release the subject of racism and racial discrimination from its historical and politicized past. It would also identify the degree of progress or lack of it in removing other dimensions of discrimination, for example discrimination on grounds of religion or belief or sex discrimination. The political and ideological environment in which the human rights activities directed at combating racial discrimination have been pursued in the past has served to isolate such efforts from other fields of anti-discrimination work. It also appears to have resulted in a distance between, for example, CERD and the bodies implementing the UN Covenants, the Human Rights Committee and the Economic, Social and Cultural Rights Committee. The 245 Seen. 241 supra and the confrontation over inclusion of the word 'compensatory' in the drafi: agenda for the World Conference between developed and Western countries, NCONF.189/PC.1/21, 16 June 2000.

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advancement of the international protection of human rights in the twentyfirst century in theory and practice should be based on a new alignment between the promotion of equality and non-discrimination and the implementation of substantive human rights. A significant beginning has been made in the case of gender. 246 But there is also a need to address other categories of discrimination and exclusion as mainstream human rights concerns. New norms strengthening protection against racial and ethnic discrimination are in prospect when the 1990 International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families comes into force. The need for ratification of this Convention will be highlighted at the World Conference. The implementation of this important Convention provides an opportunity for the existing treaty bodies to rethink the relationships between the anti-discrimination treaties and the general human rights instruments. The Convention should not emerge as another unconnected initiative in the international protection of human rights. 247 The fight against racial discrimination and prejudice needs above all a new emphasis on education. Education will be a topic at the World Conference. It is to be hoped that the need to bring together disparate initiatives in this field will be pursued. Thus, the efforts of the Special Rapporteur on Religious Intolerance to encourage the teaching of tolerance in schools and the activities generated by the current Decade on Human Rights Education (1995-2004) should be linked to any new UN initiatives on anti-racism education.248 The experience of NGOs and of regional bodies such as the Council of Europe and OSCE in the fields of building tolerance and combating prejudice against minorities must be used in similar programmes at the global level. The World Conference should also consider whether proclaiming another decade against racism and racial discrimination is called for. The idea behind decades has been to educate world opinion on the evils of racism. They have failed in that purpose. Fresh ideas are needed in the vital battle to involve public opinion on the side of tolerance and rejection of racism and xenophobia. 246 Mainstreaming women's rights in UN activities dates from the Vienna World Conference on Human Rights 1993. See Vienna Declaration and Programme of Action, A/CONF.157/23, Part II B(3), para. 37, providing that '[gender] issues should be regularly and systematically addressed throughout relevant United Nations bodies and mechanisms'. 247 The call by the Independent Expert, Mr Philip Alston, for radical rethinking of the working of treaty bodies, including his suggestion that the monitoring function for the Migrant Workers Convention ought to be undertaken by an existing treaty body in place of a new committee, is an excellent place to begin such discussion. See supra n. 152. 248 The Special Rapporteur on Religious Intolerance will report on his educational work in an international conference to be held in November 2001 in Madrid. Press Release GA Third Committee 34th Meeting, 25 Oct. 2000. On implementation of the Decade on Human Rights Education see report of the High Commissioner on Human Rights to the General Assembly A/51/506 (1996).

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The European experience of concentrating such activities over a year would seem to be a better alternative. 249 The most important achievement of the international human rights approach to the elimination of racial discrimination has been to establish in international law a prohibition on racism as a state ideology and on the practice of all forms of racial or ethnic discrimination. Not only are these prohibitions part of international customary law but the majority of the world states that have ratified ICERD have embraced a range of duties obligating them to eliminate any such discrimination by legislative, educational, and other means. The encouragement of states in the pursuit of these goals will continue to be the vital and central role of CERD. The monitoring work of that body has expanded beyond discrimination on grounds of colour to include the full range of victims of discrimination, including ethnic minorities, immigrants, and indigenous peoples. CERD needs for the future to work more closely with national and regional anti-discrimination programmes and bodies, as well as to have access to leading research on ethnic relations and inter-cultural education in different parts of the world. CERD's increasingly complex mandate requires more specialist expertise to be added to the Committee's membership if it is to have influence on the policies of states parties. A committee with greater expertise would also in time encourage a wider acceptance by states of the Article 14 individual petition procedure as well as universal ratification ofICERD. The Vienna World Conference on Human Rights urged the UN bodies to cooperate and avoid overlap in their activities. 250 That has not occurred in the field of racial discrimination. The Commission's Special Rapporteur appears to plough his own furrow without reference to the CERD. It is trite to say that such a situation serves only to undermine the credibility of the entire UN effort to offer leadership in the campaign to eliminate racial discrimination. In particular it makes even more difficult the task of persuading states to fully meet the financial needs of both mandates. It is to be hoped that a coherent United Nations strategy for the future on combating racial discrimination will emerge from the World Conference and that it will provide a coherent role for the Special Rapporteur that reinforces rather than undermines the work of the CERD.

249 The Council of Europe launched a European Youth Campaign against Racism, Xenophobia, Anti-Semitism and Intolerance, which was carried out from 1994 to 1996. See ECRI, Activities ofthe Council ofEurope with Relevance to Combating Racism and Intolerance, CRI(99)56 final, Strasbourg, September 1999. Subsequent to this campaign, the European Union declared 1997 the 'European Year Against Racism'. See the report from the Commission on the implementation of the European Year Against Racism (1997), COM(1999)268 final. 2 5° See A/CONF.157/23 Part II A.

[15] THE EUROPEAN COURT OF JUSTICE AND ANTI-DISCRIMINATION LAW: SOME REFLECTIONS ON THE EXPERIENCE OF GENDER EQUALITY JURISPRUDENCE FOR THE FUTURE INTERPRETATION OF THE RACIAL EQUALITY DIRECTIVE Sejal Parmar

1.

INTRODUCTION

As the 'opening shot' of the EU's new anti-discrimination regime, Directive 2000/43/EC or the Racial Equality Directive is a pioneering piece of legislation. 1 Adopted on 29 June 2000, the Racial Equality Directive is the first piece of legislation taken under Article 13 EC 2 and should have been transposed into the national legal systems of the Member States by 19 July 2003, an implementation deadline earlier than the Framework Employment Directive or the Equal Treatment (Amendment) Directive. 3 It is broader in scope than either of these two later initiatives, outlawing racial discrimination in such diverse and important

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Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin OJ 2000, L 180/22. Article 13 EC states: 'Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation'. Directive 2000/78/EC of November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16. Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [2002] OJ L 269/15.

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areas of social life as healthcare, education and housing. In one sweep, therefore, the Racial Equality Directive establishes and elevates the protection afforded to racial and ethnic origin above the other grounds of discrimination, including sex,4 so that racial equality now perches at the pinnacle of a 'hierarchy of equalities' protected under EU law. 5 It is significant in its timing, coming into effect during a period of constitutional debate within the Union 6 and preceding the EU eastward enlargement that should bring to the fore a new range of minority issues. 7 And it also heralds a 'new era' of equality law in Europe alongside the new Protocol 12 of the ECHR, which is discussed in the subsequent chapters of this volume. 8 But how far is the Racial Equality Directive truly a fresh start and a break from the past? Whilst race equality legislation seems a totally new venture for the Union, there remain connections between the Directive and established EU law through the basic, overarching principle of equal treatment that the Court of Justice has articulated in the field of gender equality. The Court has long been a key institu4

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L. Waddington and M. Bell, 'More Equal than Others: Distinguishing European Union Equality Directives', (2001) 38 Common Market Law Review 587, 610. Flynn notes the 'special position' of gender discrimination within the Community's social policy to date in L. Flynn, 'The Implications of Article 13 EC - After Amsterdam, will some forms of discrimination be more equal than others', (1999) 36 Common Market Law Review 1127. See also S. Fredman, 'Equality: A New Generation', (2001) 30 Industrial Law Journal 145 at 158. Under the Equal Treatment (Amendment) Directive, protection against discrimination on the grounds of gender remains limited to the fields of employment and occupation, and some aspects of social security. Discrimination on the grounds of age, religion, sexual orientation and disability is only prohibited in the sphere of employment. Moreover, Waddington and Bell have argued that the other grounds of discrimination in the Framework Employment Directive are the 'poor relations', and between these an 'internal hierarchy also exists, with age discrimination very firmly at the top of the heap'. See above at 610. However, such a hierarchy is the result of practical realities and it is difficult to justify on the basis of human rights and equality before the law. See the website of the Convention. http://european-convention.eu.int/bienvenue.asp? lang=EN&Content= The UN Development Programme Report released on Thursday, 16 January 2003, urges a new strategy to aid the Roma in Europe. Sec the report at http://www.occan.sk/ undp/. See also General Recommendation XXVII of the International Committee on the Elimination of Racial Discrimination on discrimination against Roma. For further information on the situation of the Roma see Roma Rights Quarterly, the quarterly newsletter of the European Roma Rights Center. According to the ER RC, the number of Roma in Europe is between 6.1-8.6 million whereas official figures suggest that the number lies between 2.3-2.6 million, most of whom reside in states looking to accede to the EU i.e. Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia and Turkey. See S. Fredman, 'Equality: A New Generation', above at n. 4.

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tional actor in developing the principles of equal pay and equal treatment of men and women under Articles 141 EC (ex Article 119 EC) and Article 137 (ex Article 118) and numerous directives. 9 On this basis, one may assume that the Court shall proceed in the same manner in the field of racial equality by embracing its function as interpreter of Treaty provisions and legislation on the principle of equal treatment irrespective of racial or ethnic origin. In adjudicating issues arising under the Racial Equality Directive, however, how far might the Court rely upon its old case law in the gender equality field? This chapter seeks to uncover some of the links between these two aspects of EU anti-discrimination law by explaining the specific relevance of the Court of Justice's previous jurisprudence in the field of gender equality for the interpretation of the Racial Equality Directive. 10

2.

THE GENERAL RELEVANCE OF THE EU GENDER 'EXPERIENCE'

Although it is the Community's first attempt at enacting a race relations law, its innovative quality and far-reaching nature have earned the Racial Equality Directive the label 'the most wide-sweeping equal opportunities legislation in the Community's history'. 11 The reasons for such a view are quickly apparent even from a cursory reading. Notably, the Directive provides for protection against racial discrimination, which is defined broadly to encompass the practice of harassment. The Directive is also broad in material scope covering the fields of employment and occupation, but also spheres such as social protection, education, access to goods and services including housing. Moreover, the Directive allows organisations with a 'legitimate' interest to support individual complainants in bringing cases under the legislation, while it requires Member States to establish a body/bodies for the promotion of equal treatment. In all these ways, the Directive goes beyond the level of protection guaranteed under gender equality legislation and jurisprudence to date. It might even be argued that the Directive presents such a radical progression from the parameters previously established in the field of EU sex equality law that the interpretation of the former has nothing or little to gain from a reflection on the latter. 9

Directive 75/117 [1975] OJ L45 (pay); Directive 76/207 [1976] OJ L39/40 (equal treatment); Directive 86/613 [1986] OJ L359/56 (self-employed); Directive 96/34 [1996] OJ 145/4 (parental leave); Directive 92/85 [1992] OJ L348/J (concerning pregnancy). JO See E. Guild, 'Article 13: The European Commission's Anti-Discrimination Proposals', (2000) 29 Industrial Law Journal 79; E. Guild, 'The EC Directive on race discrimination: surprises, possibilities and limitations', (2000) 29 Industrial Law Journal 416; L. Waddington and M. Bell, 'More Equal than Others: Distinguishing European Union Equality Directives', above at n. 4; D. Schiek, 'A new framework on equal treatment of persons in EC law', (2002) 8 European Law Journal 290. l l D. Chalmers, 'The Mistakes of the Good European?', in S. Fredrnan (ed), Discrimination and Human Rights: The Case of Racism (Oxford: Oxford, 2001) 193, 194-6.

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Yet one cannot dismiss the influence of the backdrop of the principle of equality between men and women that has been enshrined in Article 141 EC (ex Article 119 EC) from the beginning of the Community 12 and which, over the years, has developed into a core feature of the Community's social policy. The linkages with the history of sex equality law appear unavoidable for several reasons. First, there are the reasons related to the origins of the legislation. Though the initiative advances the EU's anti-discrimination approach in various ways, many of the provisions of the Racial Equality Directive derive from the sex equality field. The gender equality 'roots' of the Directive are felt in the substantive provisions, which shall be discussed below, but can be most clearly detected in the original Commission Proposal 13 and the Communication from the Commission oncertain measures to combat discrimination that accompanied the 'Commission's Equality Package' .14 These indicate the Commission's impulse towards ensuring consistency between racial or ethnic origin on the one hand, and gender on the other, as grounds of discrimination protected by EU law. The original Commission proposal, for example, emphasises that the definition of the principle of equal treatment in the Racial Equality Directive was intended to be consistent with the definition provided by the Equal Treatment Directive 15 and the Burden of Proof Directive 16 and with the case law of the Court of Justice on indirect discrimination.17 In terms of material scope, the scope of application to the employment field was intended to be identical to the Equal Treatment Directive, and the original provision on genuine occupational qualifications is based on a similar provision in the Equal Treatment Directive. The Communication emphasises that in developing its package of proposals the Commission drew inspiration from the Community's 'long-standing commitment towards equal opportunities and equal treatment between women and men' 18 and the 'experience in the field of

12 C. Barnard, 'The Economic Objectives of Article 119', in D. O'Keeffe and T. Hervey (eds), Sex Equality Law in the European Union (Chichester: Wiley, 1996). 13 Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, COM (1999) 566 final 25.11.1999. This document also views the Community as a 'strong defender of the human rights of women and girls', recognising that 'discrimination on the grounds of racial or ethnic origin may affect women and men differently' (at 5). 14 Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of Regions on certain measures to combat discrimination, COM (1999) 564 final. 15 Directive 76/207/EEC above at n. 9. 16 Directive 97/80/EC above at n. 9. 17 The Commission Proposal highlighted in particular the judgement in Case C-237/94, O'Flynn v Adjudication Officer [1996] ECR 2417. 18 Communication above at n. 14 at 4.

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gender discrimination'. 19 And in 'formulating these proposals', the original Commission also claims to have taken special account of past 'experience of fighting discrimination on grounds of sex' embodied in Equal Treatment and Burden of Proof Directives, but also in jurisprudence. Although the Commission Proposal was amended in the subsequent negotiation process, the impression left by gender equality law remains strong. The second reason for emphasising the links between EU racial and gender equality law concerns the 'evolution of a multi-faceted EU anti-discrimination law'. 20 Since the coming into effect of Article 13 EC, the field of anti-discrimination law has been one of energetic legislative activity on the part of the Community institutions, not only regarding racial discrimination but also with the subsequent Framework Employment Directive and Council Decision establishing an Action Programme 21 in 2000, and the new Equal Treatment (Amendment) Directive that was adopted in September 2002. Gender equality legislation and jurisprudence influenced the drafting of the Racial Equality Directive and are likely to have a bearing on its interpretation. At the same time, the Racial Equality Directive appears to have, in tum, influenced the drafting of the new Equal Treatment (Amendment) Directive. 22 For instance, the latter has borrowed the new model of indirect discrimination used in the former. 23 There now seems to be a reflexive cross-fertilisation process between EU race and gender equality law in particular, in which legislative definitions are borrowed, adapted and integrated. Whilst this process may be extended to involve further legislation emanating from the Community institutions under Article 13 EC against discrimination on other grounds, because of greater political agreement on combating racial and sex discrimination, there will be arguably most room for mutual influence between EU race and gender equality law.

19 The Communication goes on to single out 'the policies which promote of equal treatment and positive action remedies enacted by Member States to compensate for structural inequalities' Communication above at n. 14 at 7. 20 See D. Schiek, 'A new framework on equal treatment of persons in EC law' above at n. 10 at 294. 21 Council Decision 2000/750/EC of 27 November 2000 establishing a Community action programme to combat discrimination (2001-2006) [2000] OJ L 303/23. 22 For details of similarities between the two Directives and the Framework Employment Directive see D. Schiek, 'A New Framework on Equal Treatment of Persons in EC Law' above at n. 10, 294-302. 23 The definition which is discussed below states: 'indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.'

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Third, given that gender equality law was a source of inspiration for the Racial Equality Directive, Community institutions may well reflect more generally upon the 'experience' of EU gender equality jurisprudence in the future interpretation and implementation of its provisions. Recital 14 of the Directive asserts that in 'implementing the principle of equal treatment irrespective of racial or ethnic origin, the Community should, in accordance with Article 3(2) of the EC Treaty, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination'. And although the Programme of Action, which is designed to complement the two 2000 directives (the Racial Equality Directive and the Framework Employment Directive), does not address sex discrimination directly, the Commission is committed to ensuring that the gender perspective is effectively included in all actions and activities addressed in the programme to combat all other grounds of discrimination under Article 2 and 3 EC. Flynn previously noted 'the special position of gender discrimination within the Community's social policy to date', claiming that, 'whether in terms of institutional experience, expertise of the personnel in the institutions, or resources, it is highly probable that the measures used to address sex discrimination in the past will be treated as models in relation to other new protected statuses under Article 13 EC'. 24 One area in which the EU gender equality policies may influence the realm of racial equality policy is the 'soft-law' approach of 'mainstreaming' to the combat discrimination on racial or ethnic grounds. 25 The aim of this approach would be to 'mainstream' racial and ethnic equality across all EU policies and activities. In this light, it is likely that the Court of Justice shall draw upon its own gender equality jurisprudence as a 'model', which it would regard as comprising of the most immediate and pertinent of precedents. 26 As a mark of its institutional support for the legislation, it may in its early case law declare that the general principle of equal treatment on the grounds of racial and ethnic origin, is a fundamental one in the Community legal order. This affirmation of the principle of equal treatment on the grounds of racial or ethnic origin would 24 Flynn above at n. 4 at 1140. 25 See the 1996 Communication on mainstreaming, COM (96)67 and the follow-up document COM (1998)122. More specific examples include the policy of mainstreaming gender equality in EC development co-operation, COM(2001) 295 and mainstreaming in the structural funds, COM(2001)539. For commentary see M. Pollack and E. Hafnor-Burton, 'Mainstreaming Gender in the EU' (2000), 7 Journal of European Public Policy 432 and S. Mazey, Gender Mainstreaming in the EU: Principles and Practice (Kogan Page, 2001). 26 Other potential points of reference include the approaches of Member States' laws and court decisions, the jurisprudence of the European Court of Human Rights and the decisions of the International Committee on the Elimination of Racial Discrimination.

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be in keeping with the Court's established gender equality case law. 27 Given the human rights underpinnings of the Racial Equality Directive indicated in Recital 3, 28 the Court of Justice may well go beyond this broad pronouncement and echo the judgement of Defrenne III. In this decision, which was followed in the cases of P v. S 29 and Schroder, 30 the Court first ruled that the elimination of sex discrimination was one of the fundamental personal human rights, which must be protected within Community law. 31 The following parts of this chapter examine the Racial Equality Directive in closer detail and highlight judicial decisions from the gender equality field that the Court may consider relevant in it pronouncements on the Directive. Given that it is impossible to know the first issues to be decided by the Court at this stage, the following sections are somewhat speculative in nature.

3.

'RACIAL OR ETHNIC ORIGIN'

The Racial Equality Directive does not define 'race' or 'racial or ethnic origin', but rather the concept of discrimination on grounds of racial or ethnic origin. 32 In practice, however, discrimination related to race or ethnicity can persist under different guises. 33 As reports of racist incidents in the aftermath of '9/11' have indicated, the factors leading to so-called 'racial discrimination' are frequently tightly bound to other factors, such as religion or belief and nationality. Whilst

27 Cases 20/71, Sabbatini (1972] ECR 345; 21/74 Airola (1972] ECR 221; 75, 117/82, Razzouk and Beydoun v. Commission (1984] ECR 1509. 28 That recital states: 'The right to equality before the law and protection against discrimination for all persons constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of all forms of Discrimination Against Women, the International Convention on the Elimination of all forms of Racial Discrimination and the United Nations Covenants on Civil and Political and Economic, Social and Cultural Rights and by the European Convention for the Protection of Fundamental Freedoms, to which all Member States are signatories'. 29 Case C-13/94, P v. Sand Cornwall County Council [1996] ECR 2143, para. 19. 30 C-50/96, Deutsche Telekom v. Schroder [2000] ECR I-743, para. 56. 31 Case 149/77, Defrenne v. Sabena (1978] ECR 1365, paras. 26-27. 32 See also the International Convention on the Elimination of all forms of Racial Discrimination, which in Article I refrains from defining race. 33 The Human Rights Watch World Report for 2001 states: 'racism blights the lives of groups defined primarily by ethnicity, caste, or an identity shaped by religion' (emphasis added). Human Rights Watch World Report 2001 http://www.hrw.org/ wr2kl/special/racism.htm

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the Directive appears to apply to third country nationals, 34 it goes on to exclude distinctions based on nationality even though the causes of racial discrimination and xenophobia are inextricably linked. 35 It also overlooks the interstices between race and religion as factors of discrimination. Given the its generally conservative approach towards the definition of 'sex' in gender equality case law, however, the Court is likely to define the scope of 'racial or ethnic origin' restrictively. Following P v. S, a case concerning discrimination against transsexuals under Directive 76/207, it appeared that the idea of 'sex equality' would be granted a broad interpretation. Although the Court of Justice ruled in the case that sex discrimination under the Directive included discrimination arising from gender reassignment, in Grant the Court decided that the prohibition on discrimination on grounds of sex within Article 141 EC (ex Article 119 EC) did not cover discrimination on grounds of sexual orientation. The Court's restrictive approach to the notion of sex equality, which was reaffirmed in Grant in D v. Council, 36 is likely to be similarly applied in respect of 'racial equality'. Strong reasons do indeed exist for the exclusion of religious discrimination from the scope of the Racial Equality Directive: Article 13 EC expressly demarcates 'racial and ethnic origin' and 'religion or belief' as distinct grounds of discrimination that the Community may take action against; the Framework Employment Directive forbids discrimination on the grounds of religion within its terms whilst the Racial Equality Directive only refers to 'racial and ethnic origin'. It is argued that in implementing the Racial Equality Directive, greater attention ought to be paid to the 'real-life' connections between different kinds of discrimination, in particular race and religion, through, for example, the concept of multiple discrimination. Simply because the discrimination in question is based on religion does not prevent it also being based on racial or ethnic origin and therefore falling within the scope of the Directive. 37 Hopes for a more inclusive definition of racial discrimination also rest with national law. Article 6(2) provides that 'under no circumstances' shall implementation of the Racial Equality Directive result in a reduction in the level of protection already afforded under national law. For example, UK courts have been more open to recognising the nexus between discrimination on the grounds of religion and race. Although the UK's Race Relations Act excludes religion from its prohibited grounds of 34 Article 3(1) on Scope states:' ... this Directive applies to all persons'. See also C-230/ 97 Awoyemi [1998] ECR I-6781. 35 Article 3(2). Third country nationals are only protected if the difference in treatment is not related to provisions governing their entry and residence. 36 Case C-249/96, Grant v. South-West Trains [1998] ECR I-621. For comments, See M. Bell, (1999) 5 European Law Journal 63; C. Barnard, (1998) 57 Cambridge Law Journal 352. 37 E. Guild, 'The EC Directive on Race Discrimination: Surprises, Possibilities and Limitations', (2000) 29 Industrial Law Journal 416, 419.

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discrimination, religious groups who have framed their arguments on racial or ethnic grounds have sometimes been successful in making their claims under its provisions. 38

4.

SCOPE

The Racial Equality Directive covers the four employment related fields covered by the Framework Employment Directive: conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, including promotion; access to all levels of vocational guidance, vocational training advanced vocational training and retraining, including practical work experience; employment and working conditions, including dismissals and pay; membership of an involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided by such organisations. 39 These same areas are also covered in the gender equality field by the new Equal Treatment (Amendment) Directive. 40 There is a developed jurisprudence on the principles of equal pay and equal treatment, which should be relevant for the Court of Justice's future judgements of the Racial Equality Directive. The Court shall presumably interpret the idea of pay very broadly under the Racial Equality Directive as it has in the field of gender equality. Article 141 EC (ex Article 119 EC) has been granted a wide interpretation in cases such as Garland, in which travel benefits conferred in respect of employment, even after retirement and irrespective of any specific contractual obligation, were held to constitute pay. 41 In Kowalska the equal pay principle in Article 141 EC was held to cover a severance grant, 42 whilst in Seymour Smith the Court decided that compensation for unfair dismissal was pay since it was designed to replace pay to which the employee would have been entitled had she not been unfairly dismissed.43 The Court has also held that the rules governing the system of salary-

38 The UK courts have accepted some of these categorisations and have extended the Act's protection to certain religious groups. The UK Courts have adopted a 'distinct community' test which allows high degree of self-identification and a concept of ethnic origin that is defined by virtue of behaviour which the individual could change. See Mandia v. Dowell Lee [1983] 2 AC 548. 39 Racial Equality Directive, Articles 3(1)(a)-(d). 40 Equal Treatment (Amendment) Directive, Article 3(l)(a)-(d). 41 In the particular case, these travel facilities for spouses and dependent children. Case C 12/81, Garlandv. British Rail Engineering Ltd. [1982] ECR 359. See also Case C249/96, Grant v. South West Trains above at n. 36. 42 Case C- 33/89, Kowalska v. Freie und Hansestadt Hamburg [1990] 2591. 43 Case C-167/97, Seymour-Smith and Perez [1999] ECR 1-623.

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classification into grades, 44 severance benefits, including statutory redundancy payments, 45 and statutory sick payments constitute pay. 46 In Batel, 47 Lewark4 8 and Freers 49 the Court ruled that statutorily required compensation payments to workers attending training courses which gave them the knowledge required for working on staff councils would constitute pay. Whilst the Court of Justice determined that statutory pension benefits would not be considered 'pay' in Defrenne I, 50 in Bilka the Court held that the benefits paid to employees under occupational pension schemes may constitute pay in certain circumstances. 51 In that case, the pension scheme was (1) contractual in nature; (2) not governed by statute but by the agreement between employer and employee, and (3) not financed in part by the public authorities but entirely by the employer. 52 In the important decision of Barber, the Court of Justice was asked whether contracted-out occupational pension schemes constituted pay. 53 Reflecting on its own reasoning in Bilka, the Court held that such schemes were covered by the equal pay principle. Article 141 EC (ex Article 119 EC) may be invoked against the employer or the trustees of the pension scheme, not just by an employee under that scheme, but also by the employees' dependents. 54 The Court drew

44 45 46 47 48 49 50 51 52

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Case C-184/89, Nimz v. Freie und Hansestadt Hamburg [1991] ECR I-297. Case C- 262/88, Barber v. Guardian Royal Exchange [1990] ECR 1989. Case 171/88, Rinner-Kuhn v. FWW Spezial-Gebaudereinigung GmbH [1989] ECR 2743. Case C-360/90, Arbeiterwohlfahrt der Stadt Berlin v. Batel [1992] ECR 3589. Case C-457/93, Kuratorium fiir Dialyse un Nierentransplantation v. Lewark [1996] ECR I-243. Case C-278/93, Freer.1· und Speckman v. Deutsche Bundespost [1996] ECR I-1165. Case 80/70, Defrenne v. Belgium [1971] ECR 445, paras. 6-10. Case C-170/84, Bilka-Kaufhaus GmbHv. Karin Weber van Hartz [1986] ECR 1607. The fact that the employer chose to arrange the particular scheme in question in a manner which corresponded to the statutory social security scheme was held to be irrelevant. Later, the Court has also held that the fact that affiliation to an occupational pension scheme was made compulsory by legislation for employees was irrelevant to the application of Article 141 EC (ex 119 EC). Case C-435/93, Dietz v. Stichting Thuiszorg Rotterdam [1996] ECR 1-5223. In Moroni the Court held that sums paid out under a supplementary pension scheme also constituted pay. Case C-110-91, Moroni v. Callo ECR 1-6591. Case C-200/91, Coloroll Pension Trustees Ltd. v. James Richards Russell [1994] ECR 1-4389, 17-19; Case C-379/99, Pensionskasse fiir die Angestellten der Barner Ersatzkasse v. Menauer [2001] ECR 1-7275. See also Ten Dever, in which the Court ruled that Article 141 EC (ex Article 119 EC) covered pensionable benefits payable to the employee but also the employee's survivor, such as a widow. Case C- 109/91, Ten Dever v. Stichting Bedrijf.~pensioenfonds voor het Glazenwassers-en Schoonmaakbedrijf [1993] ECR 1-4879.

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back from its position somewhat in the cases of Coloroll and Neath 55 concerning payments by an employer to a contracted-out occupational pension scheme (rather than payments to an employee, as in Barber) which were denied the status of 'pay' under Article 141 EC (ex Article 119 EC). The Racial Equality Directive may have most impact and present the more interesting decisions under the legislation in cases arising from situations outside the context of the workplace. After all, the Directive has been lauded partly because of its broad scope which goes far beyond the realm of employment and occupation and sees the Community making full use of the competence provided by Article 13 EC to act 'within the limits of the powers conferred by [the Treaty] upon the Community'. Apart from the sphere of employment and occupation, which has been traditionally the focus for the EU's gender equality law, the Directive covers a range of fields social protection including social security and healthcare, social advantages, education, access to and supply of public goods and services including housing. 56 Most of these fields are completely new areas of attention for the Community's anti-discrimination law and, therefore, have not been discussed in the case law. 57 Social security, however, has been examined in jurisprudence concerning Directive 79/7 on statutory social security. Social security must be strictly employment-related according to Achterberg-te Riele, in which the Court ruled that persons who give up work for a reason other than one of the five listed in the Directive (sickness, invalidity, old age, accidents at work and occupational diseases or unemployment), such as to look after children, fall outside the scope of the Directive. 58 The Court went further in Johnson I, deciding that in order to be covered by the Directive, the person in question must have also either given up employment or been obliged to give up seeking employment at the time of materialisation of one of the reasons in the Directive. 59 Various benefits have been held to be outside the material scope of the Directive by the Court, such as

55 Case C-152/91, Neath v. Ilugh Steeper Ltd [1993] ECR I-6935. 56 Racial Equality Directive, Articles 3(l)(e)-(h). 57 The new Equal Treatment (Amendment) Directive only covers employment and occupation, so gender is now second in the hierarchy of grounds of discrimination protected under EU law. 58 Directive 79/7 [1979] OJ L6/24. Cases 48, 106 and 107/88, Achterberg-te Riele v. Sociale Versekeringsbank, Amsterdam [1989] ECR 1963. 59 Case C-31/90, Johnson v. Chief Adjudication Office [1991] ECR I-3723, 12-23. See also Case C-77/95, Ziichner v. Handelskrankenkasse ( Ersatzkass) Bremen [1996] ECR I-5689. See the Court's more generous case law also: Cases C-317/93, Inge Nolte v. Landesversicherungsanstalt Hannover [1995] ECR I-4625 and C-444/93, Megner and Scheffel v. Innungskrankenkasse Vorderpfalz, now lnnungskrankenkasse Rheinhessen-Pfalz [1995] ECR 1-4741.

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housing benefit, 60 income support or supplementary allowance, 61 child benefit, 62 travel concessions on public transport for pensioners. 63 The Court has rejected the argument that Directive could be extend to cover measures of 'social protection'64 going beyond social security proper. On the other hand, national health prescription exemptions for old-age pensioners, 65 winter fuel payment66 have been held to fall within the scope of the Directive.

5.

CONCEPTS OF DISCRIMINATION

The Racial Equality Directive explicitly prohibits three different forms of discrimination - direct discrimination, indirect discrimination, and harassment. Once again the Racial Equality Directive embarks upon extending the principle of equal treatment to areas beyond the established confines of EU gender equality law, fields in which there is no Court of Justice jurisprudence. Significantly, the Directive is the first occasion on which harassment has been outlawed under EU law. Similar provisions exist in the Framework Employment Directive and the Equal Treatment (Amendment) Directive that have been adopted in its wake. 67 Before the adoption of the Racial Equality Directive there was also no legislative definition of direct discrimination in EU law and indirect discrimination was only defined in legislation as late as 1997. 68 Consequently, the Court has been forced to play an important role in 'filling in the gaps' of gender equality legislation by shedding light on the meaning of the concepts of indirect and direct discrimination.

60 Case C-243/90, R. v. Secretary of State for Social Security, ex part Smithson [1992] ECR 1-467. 61 Cases C-63-64/91, Jackson v. Chief Adjudication Officer [1992] ECR 1-4737. 62 Cases C-245/94 & C-312/94, Roever and Zachow v. Land Nordrhein Westfalen [1996) ECR 1-4895. 63 Case C-228/94, Atkins v. Wrekin District Council and Department of Tran.1port [1996) ECR I-3633. 64 See Atkins above. 65 Case C-137/94, R. v. Secretary of State for Health, ex. p. Richardson [1995] ECR 13407. 66 Case C-382/98, R. v. Secretary of State for Health, ex. p. Taylor [1999] ECR I-8955 .. 67 The Employment Framework Directive, Article 2(2)(3). The Equal Treatment (Amendment) Directive also contains a definition of discrimination that encompasses harassment and sexual harassment in Article 2(2). 68 Under the Burden of Proof Directive 97/80/EC [1997) 0114/6.

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Direct Discrimination

Article 2(2)(a) of the Racial Equality Directive states: 'direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin'. 69 The Court of Justice, in the Defrenne II decision, confirmed that Article 119 EC (now Article 141 EC) could have direct effect in a case of clear and direct pay discrimination. 70 Examples of such unjustified practices would include discrimination within legislation or collective labour agreements which 'may be detected on a purely legal analysis of the situation' or situations in which persons of different racial or ethnic groups received 'unequal pay for equal work carried out in the same establishment or service'. 71 For the purposes of practical application of the Racial Equality Directive, the most significant aspect of this definition are the words 'comparable situation'. Given the absence of legislative guidance on the meaning of this phrase, the Court of Justice has had to explain its implications. But the identification of a suitably positioned comparator has been frequently problematic under sex discrimination case law. 72 The Court has sometimes appeared inconsistent, allowing comparisons to be made between a woman and a man who previously performed the same job73 whilst rejecting reference to hypothetical comparators outside the scope of discrimination on the grounds of pregnancy. 74 It remains to be seen whether the Court maintains a similarly inconsistent approach in the field of racial equality. The fact that the Racial Equality Directive refers to one person being treated less favourably than 'another ... would be' (emphasis added) suggests that references to hypothetical comparators shall be allowed by the Court. If so, Waddington and Bell argue that 'this will not only raise interesting questions concerning interpretation and application, but also result in greater protection from direct discrimination' on grounds of racial and ethnic origin than currently exists with regard to sex discrimination. 75

69 Framework Employment Directive and the Equal Treatment (Amendment) Directive. 70 Case 43/75, Defrenne v. Sabena, [1976] ECR 455, 18. 71 In Dekker, the Court held that a refusal of employment on the grounds of pregnancy could be regarded as direct sex discrimination since only women could be refused employment on this reason. Case C-177/88, Dekker v. Stichting Vormingscentrum voor Jong Volwassenen, [1990] ECR I-3941. See especially paragraph 10. 72 See E. Ellis, EC Sex Equality Law (Oxford: Clarendon, 1998). 73 Case 129/80, MacCarthys Ltd. v. Smith, [1980] ECR 1275. 74 MacCarthys, above; Case C-2OO/91, Coloroll v. Russel, [1994] ECR I-4398. 75 See Waddington and Bell above at n. 4 at 592.

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5.2

Indirect Discrimination

In defining indirect discrimination, Article 2(2) of the Racial Equality Directive states that it 'shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons'. Under the Racial Equality Directive 'a provision, criterion or practice' is not deemed indirect discrimination if it 'is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary'. Before the adoption of a legislative definition of indirect discrimination first contained within the Burden of Proof Directive, the Court of Justice was left to elaborate the concept in the context of a number of sex discrimination cases. The approach of the Court heavily influenced the subsequent legislative definition. Given that the two concepts appear more interrelated in the case law, this section shall examine the Court's determination of indirect discrimination and its approach to objective justification. The idea of indirect sex discrimination was developed in Jenkins 76 and then Bilka-Kaufhaus, 77 cases which involved part-time workers, mainly women, who were paid a lower hourly rate than full-time workers. The Court held that if proportionately more women work part-time, the exclusion of those part-time workers would be indirectly discriminatory and contrary to Article 141 EC where that exclusion could not be justified by factors unrelated to any discrimination on grounds of sex. 78 Following this gender equality case law there would be also no need to establish an intention to discriminate on the grounds of racial or ethnic origin the part of an employer. 79

76 Despite the rulings in Defrenne II and Macarthys indicating that Article 141 EC could not have direct effect where discrimination was indirect, subsequent case law has indicated that the existence of indirect discrimination does not preclude the direct effect of the Article, when such discrimination can be identified on a 'purely legal analysis' without the need for further legislation. Case 96/80, Jenkins v. Kingsgate (Clothing Productions) Ltd. [1981] ECR 911; Case 129/79, Macarthys Ltd. v. Smith [1980] ECR 1275, 14-15. 77 Case 170/84, Bilka-Kaufhaus v. Weber von Hartz, [1986] ECR 1607. 78 In contrast, the Enderby case shows the problem of establishing indirect discrimination by demonstrating that the professions which are predominantly female is undervalued in comparison to the professions which are predominantly male. The hurdles are, arguably, even more difficult in a case of indirect racial discrimination where the 'male norm' of gender equality jurisprudence, is replaced by a 'white norm'. Case 127/92, Enderby v. Frenchay Health Authority and the Secretary of State for Health [1993] ECR 5535, see in particular 15-18; see also Case C-400/93, Royal Copenhagen [1995] ECR I-1275. 79 See paragraph 36 of Bilka case above at n. 77.

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or 'unfavourable' impact the Court has often required thorough statistical evidence in the gender equality field. This has proved problematic at times and has denied indirect discrimination on grounds of insufficient statistics. 80 In SeymourSmith, for example, the Court held that 'the national court must verify whether the statistics available indicate that a considerably smaller percentage of women than men is able to fulfil the requirement impose by that measure'. 81 In contrast, in Schnorbus, the Court ruled that it was not necessary to rely on such statistical evidence. 82 The 1997 Burden of Proof Directive, which applied exclusively in the field of gender discrimination, also included a legislative definition of indirect discrimination that moved away from the statistics based approach. 83 The Racial Equality Directive withdraws further from a reliance on statistics within the case law by defining racial discrimination as a provision, criterion or practice that 'would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons'. In doing so, the drafters of the legislation have followed the approach of the Court in the free movement of persons case O'Flynn. 84 In O'Flynn the Court held that a rule was indirectly discriminatory where it was intrinsically liable to affect migrant workers more than their national counterparts and if there was a risk that it would place migrant workers at a particular disadvantage. The Court emphasised that it is not necessary to find that the measure did in practice affect a substantially higher proportion of migrant workers, as long as it was liable to have such an effect. The test for establishing indirect racial discrimination is easier to satisfy than the previous test for indirect sex discrimination because the burden of proof for establishing the necessary level of adverse treatment seems to be simpler to meet. Therefore, in demonstrating a case of indirect racial discrimination no statistical evidence is needed to show that other persons from racial or ethnic groups have also been discriminated against. The shift, however, has not been wholly welcomed. Barnard and Hepple, for instance, argue that the result of the approach embodied within the Racial Equality Directive is that the individualistic, formal equality elements of indi80 Case C-189/91, Kirsammer Hack, ECR 1993, I-6215. 81 Case C-167/97, R. v. Secretary of State for Employment, ex parte Seymour Smith, (1999] ECR I-623, 65. 82 Case C-79/99, Schnorbus v. Land Hessen [2000] ECR I-10997. 83 Article 2(2) states: 'For the purposes of equal treatment ... indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex'. 84 Case C-237/94, O'Flynn v. Adjudication Officer [1996] ECR 1-2617, 2639.

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rect discrimination are retained. 85 As long as a particular individual is put at a disadvantage on racial grounds compared to individuals of a different group, the principle of indirect discrimination under the Directive is satisfied regardless of the impact on the group as a whole. 86 It is the individual who continues to bear the burden of bringing a case and the remedy is by way of individual compensation, rather than a 'direct requirement of restructuring'. 87 Moreover, the Directive shows an attachment to the use of statistical evidence through deference to national 'judicial or other competent bodies' concerning the 'appreciation of facts from which it may be inferred that there has been direct or indirect discrimination'. Recital 15 also asserts that national law or practice 'may provide in particular for indirect discrimination to be established by any means including on the basis of statistical evidence'. 88 5.2.2 Objective justification Although the scope of an 'objective justification' in the field of gender equality remains unclear, the Court of Justice, who has often left it up to national courts to decide whether a discriminatory practice is justified, has given some guidance. The case law indicates the Court's position that an authority must demonstrate that any discrimination which does occur is effective in achieving a legitimate purpose and goes no further than is necessary to achieve that aim. In paragraph 36 of the judgement in the Bilka case, concerning eligibility of part-time workers for an occupational pension scheme, the Court formulated a proportionality test for indirect discrimination. An instance of indirect discrimination can be justified if: (1) the measure answers a 'real need' of the employer; (2) the measure is 'appropriate' to achieve its intended objectives; and (3) the measures are 'necessary' to achieve those objectives. 89 This test was mirrored in Rinner-Kuhn in which the Court applied a similar test 90 and suggested that 'social policy' might

85 C. Barnard and B. Hepple, 'Substantive Equality', (2000) 59 Cambridge Law Journal 562, 568. See Fredman, above at n. 4 at 165. 86 See Fredman, above at n. 4 at 165. 87 Fredman states these constraints, alongside the 'inevitability of statistical tangles in at least some cases, mean that indirect discrimination as a concept will inevitably play a minor role in bringing about change'. Above at n. 4 at 165 88 See Recital 15 of the Racial Equality Directive and Recital 16 of the Framework Employment Directive and Recital 10 of the proposed the Equal Treatment (Amendment) Directive. 89 See Bilka above at n. 77 para. 36. 90 Indirect discrimination was held to exist if (1) the measure was a 'necessary aim' of social policy; (2) the measure was 'suitable' as a means of achieving its aims; (3) the measure was 'requisite'. See also Case 184/89, Nimz v. Freie und Hansestadt Hamburg above at n. 44.

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constitute good grounds for discrimination. 91 What other kinds of discrimination have been considered 'objectively justified' by the Court? In Nimz, the greater experience of full-time workers was held to be insufficient as a justification.92 However, criteria such as mobility, training and length of service, which could disadvantage women, have been held to be valid objective justifications. 93 But Hill and Stapleton, a case concerning discrimination against job-sharers who were predominantly women, seems to indicate that the Court is applying a higher standard of scrutiny when the 'objective justification' exception is raised by Member States. In that case the Court ruled that such indirect discrimination could not be justified by economic considerations only. 94 Despite the influence of the Burden of Proof Directive, the Racial Equality Directive's emphasis on a standard of proportionality arguably draws much more on gender equality case law. Given the similarities in the provisions of the 2000 Directives and the Equal Treatment (Amendment) Directive on indirect discrimination, it seems likely that the Court of Justice shall develop a common standard of 'objective justification' that proceeds from the base of gender equality jurisprudence. 5.3

Harassment

As indicated earlier, harassment is a new area of legislative activity for the Community. Harassment is defined in Article 2(3) of the Racial Equality Directive, which states that it 'shall be deemed to be discrimination ... when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile,

91 In Rinner-Kuhn, the Court found provisions of national legislation indirectly discriminatory. Although these provisions could have been objectively justified, the justification offered was inadequate according to the Court which followed the Bilka approach. Case 171/88, Rinner-Kuhn v. FWW Spezial-Gehiiudereinigung GmhH above at n. 46. See also Case C-457/93, Kuratoriumfur Dialyse un Nierentransplantation v. Lewark [1996] ECR 1-243; Case C-278/93, Freers und Speckman v. Deutsche Bundespost [1996] ECR 1-1165; Case 80/70, Deji-enne v. Belgium [1971] ECR 445, paras. 6-10. 92 Case C-184/89, Nimz v. Freie und Hansestadt Hamburg above at n. 44 at paras. I 314. 93 Case 109/88, Danfuss [1989] ECR 3199. 94 Case C-243/95, Hill and Stapleton v. Revenue Commissioners [1998] ECR 1-3739. The relative ease with which the commercial objectives of an undertaking or employer can defeat a claim of indirect discrimination has been criticised by one commentator. See for an example Case C-189/91, Kirschammer-Hack v. Sida! [1993] ECR 1-6185 and T. Hervey, 'Small Business Exclusion in German Dismissal Law', (1994) Industrial Law Journal 267.

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degrading, humiliating or offensive environment.' This inclusion of harassment as a form of discrimination should be welcomed. But the provision goes to state that 'the concept of harassment may be defined in accordance with the national laws and practice of the Member States'. In doing so, the possible application of the provision is constrained. As Waddington and Bell point out, 'it would logically imply that those aspects of harassment which are not defined in Article 2(3) remain a matter for national law; for example, the liability of employers, schools, universities, hospitals, landlords for failing to prevent harassment' .95 The Court may be called upon to determine the scope of this provision, but in the absense of earlier gender equality precedents.

6.

EXCEPTIONS TO THE PRINCIPLE OF EQUALITY

6. 1

Genuine Occupational Qualifications

The Racial Directive Equality provides for differences treatment based on a relevant occupational requirement. 96 Under the heading, 'genuine and determining occupational requirements', the Directive states that ' ... Member States may provide that a difference of treatment which is based on a characteristic related to racial or ethnic origin shall not constitute discrimination where ... such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate' .97 The newer definition of occupational requirement contained in the Racial Equality Directive follows the proportionality principle read into the Equal Treatment Directive by the Court. In particular, the Court in Johnston required the derogation from the fundamental principle of equality had to be construed narrowly, that ' ... derogations remain within the limits of what is appropriate and necessary for achieving the aim in view'. 98 6.2

Positive Action

The Racial Equal Directive adopts a permissive approach to positive action policies: it does not require the imposition of positive duties, but they are allowed under its terms. 99 Article 5 therefore states: 'With a view to ensuring full equality

95 Waddington and Bell, above at n. 4 at 595. 96 See also Articles 4-6 of the Framework Employment Directive. 97 Racial Equality Directive Article 4. Article 4(1) of the Framework Employment Directive contains a similar provision. 98 Case 222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary, [1986] ECR 1651, paragraph 38. 99 See S. Fredman, 'Reverse Discrimination in EU Law: A Critical Analysis' in J. Shaw

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in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin'. The scope of positive action in EU law has sparked a lively debate in recent years, even with a handful of cases on the issue. 10° Following the 1997 Equal Treatment Directive, which first provided an exception for positive action measures,101 the Court considered the meaning and scope of this provision in several high-profile cases. 102 In Kalanke, its most controversial decision, 103 the Court stressed that 'as a derogation from an individual right laid down in the Directive' the exception for positive action measures 'must be interpreted strictly' .104 The Treaty of Amsterdam inserted a new provision on positive action into Article 141 EC (ex Article 119 EC) which states: 'with a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers'. Whilst this provides a broader formulation than the terms of the Equal Treatment Directive, the Court's initial interpretation of Article 141(4) EC suggests that it does not significantly increase the scope for positive action. 105 Since Kalanke, the Court has maintained that it will not accept positive action schemes that produce 'equal results' through automatic mechanisms at the selection stage. The Court permits, however, a wide range of positive action measures including strict quotas, before

100 101

102

103

104 105

(ed), Social Law and Policy in an Evolving European Union (Oxford: Hart, 2000) 171; S. Fredman, Women and the Law (Oxford, Clarendon Press, 1997) ch. 8. See among others, G. Mancini and S. O'Leary, 'The new frontiers of sex equality law in the European Union', 24 (1999) European Law Review 331. Article 2(4) states: 'this Directive shall be without prejudice to measures to promote equal opportunity to men and women, in particular by removing existing inequalities which affect women's opportunities ... ' Case-450/93, Kalanke v. Freie Bremen, [1995) ECR 1-3069; C-409/97, Marschall v. Land Nordrhein-Westfalen, [1997) ECR 1-6363; C-158/97, Badeck v. Hessicher Ministerprusident [1999) ECR 1-1875; C-407/98, Abrahamsson and Anderson v. Fogelqvist [2000] ECR 1-5539. S. Dagmar, (1996) 25 Industrial Law Journal 239; S. Moore (I 996) 21 European Law Review; A. Peters (1996) 2 European Law Journal 177; S. Prechal ( 1996) Common Market Law Review 45; D. Schiek (1996) 25 Industrial Law Journal 239; L. Senden ( 1996) 59 Modern Law Review 876; S. Fredman (1997) 113 Law Quarterly Review 575. See also the Commission's own communication on the interpretation of the Court COM (96)88. Kalanke above at n. 102 at para. 8. See Ahrahamsson above at n. 102. 64.

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the point of employment selection. In Badeck, for instance, the Court was prepared to accept measures, which imposed a strict quota reserving at least 50% of training places for women, and requiring at least 50% of all candidates invited to interview to be women. 106 Moreover, the Court has not rejected all forms of positive action at the point of selection, but simply requires that such schemes are flexible in nature and guarantee an objective and individual assessment of all candidates. 107 Whilst the Racial Equality Directive's positive action provisions are viewed as essential for the attainment of 'full equality in practice', Member States are left to determine whether they wish to strive for substantive equality through these schemes. Although the text of the Directive closely follows that found in Article 141(4) EC, it omits the most progressive aspect of that Treaty provision, the possibility of conferring 'specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity'. Waddington and Bell note, therefore, that 'if anything, Article 5 of the Race Directive is more restrictive than Article 141 (4) EC.' Notwithstanding, it is speculated that the EU approach for positive action under the Racial Equality Directive shall not differ substantially from the current approach of the Court as indicated in Abrahammson. 108 On the one hand, the Court may well extend these general principles on genderbased positive action policies to race-based positive action policies for two main reasons: firstly because the amendment to Article 141(4) EC was not followed by a new approach start on positive action in Community law by the Court, but rather an assimilation of Article 141(4) EC within the principles already established through its existing case law; and secondly because the Framework Employment Directive and the Equal Treatment (Amendment) Directive) contain only slightly different provisions on positive action and the Court would be expected to follow a similar approach in respect of positive action policies promoting equal treatment on all the Article 13 EC grounds of discrimination. It will be interesting to see how the Court deals with the particular issue of race and ethnicity when adjudicating on race-based positive action policies. Given the limited nature of the jurisprudence on gender-based positive action schemes, the first conflicts arising out of positive action schemes employed in the field of racial and ethnicity discrimination are likely be different to those discussed by the case law so far. It might be asked, however, how far the Court would be willing to extend its principles on gender-based positive action policies to training schemes, similar to the one in Badeck, which exclusively provided for persons of a particular ethnic origin. One might argue that complexities of different kinds

at n. 102, paras. 55 and 63. Case C-409/95, Marschall above at n. 102, para. 35. The Court distinguished Kalanke from the Marschall case by reference to its so-called 'savings clause'. 108 Above at n. 102. 106 Badeck 107

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of discrimination merit different types of positive action programmes, adjusted to the particular social context within which the protected group finds itself. It is predicted, however, that the Court shall aim to maintain an 'equality among equalities' as far as possible and refrain from applying such a variable approach within the framework of EU anti-discrimination law.

7.

VICTIMISATION

The Racial Equality Directive obliges Member States to 'introduce into their national legal systems such measures as are necessary to protect individuals from any adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment' .109 Though the Racial Equality Directive appears to have gone beyond the notion of victimisation under the Equal Treatment Directive, it must be noted that the Court of Justice expanded its meaning under that Directive in Coote. 110 In this case, the Court took a more teleological view of the Directive and held that fear of victimisation 'might deter workers who considered themselves victims of discrimination from pursuing their claims ... and would consequently ... seriously ... jeopardise implementation of the aim pursued by the Directive'. The Court's more purposeful approach through its reference to the aim of the Directive aUows a broader conceptualisation of victimisation and is one that should be applied under the Racial Equality Directive. 111 This gender equality case law on victimisation is particular instructive for the interpretation of the Directive, for it implies, that protection from victimisation extends beyond a situation in which a worker is dismissed following a complaint.

8.

ENFORCEMENT

The Racial Equality Directive goes beyond the framework established by sex equality legislation law with some innovative mechanisms of enforcement. 112 In 109 Article 9 Racial Equality Directive. 110 The case concerned a woman who had sued her employer following her dismissal for being pregnant. After the unfair dismissal proceedings were completed (check), the employer refused to give her a reference and Mrs Coote sued again for victimisation. At first instance, the industrial tribunal held thats. 6 of the UK's Sex Discrimination Act only applied to persons currently employed by the defendant, and since Mrs Coote no longer worked for the defendant she was denied the protection of the Act. Case C-185/97, Coote v. Granada Hospitality Ltd. (1998] ECR I-5199. 111 See M. Connolly, 'Discrimination Law: Victimisation', (2002) Industrial Law Journal 161. 112 J. Blom, B. Fitzpatrick, J. Gregory, R Knegt and U. O'Hare, The Utilisation of Sex Equality Litigation in the Member States of the European Community V/782/96-EN 25-6 (Brussels: European Commission, 1996).

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particular, the Directive recognises the need to provide better support to individual litigants by encouraging the participation of relevant associations. It provides for organisations 'with a legitimate interest', a criterion to be determined by national law, to 'engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive'. rn In contrast to the Framework Employment Directive, the Racial Equality Directive also requires Member States to establish 'a body or bodies for the promotion of equal treatment'. 114 These bodies are required to be able to provide 'independent assistance to victims of discrimination in pursuing their complaints', conduct 'independent surveys concerning discrimination' and publish independent reports and recommendations on issues relating to discrimination. 115 The Racial Equality Directive also permits a reversal in the burden of proof under certain circumstances in racial discrimination cases. Article 8(1) of the Racial Equality Directive states that 'Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because of the principle of equal treatment has not applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment'. 116 Even though the 1997 Burden of Proof Directive was the basis for the burden of proof provisions in the Racial Equality Directive, the underlying principles on the burden of proof can be traced to cases such as Enderby in which the Court stated that 'where there is a prima facie case of discrimination, it is for the employer to show that there are objective reasons for the difference in pay'. 117 The Racial Equality Directive also specifies certain principles that must be used in national remedies in discrimination, although the detailed application 113 Article 7(2) Racial Equality Directive; Article 9(2) of the Framework Employment Directive contains an identical provision. 114 Article 13(1) Racial Equality Directive. 115 Article 13(2) Racial Equality Directive. Equality agencies have been part of the antidiscrimination strategy of a several EU Member States, such as the UK, Ireland, the Netherlands and Sweden. 116 A similar provision exists in Article 10 of the Framework Employment Directive. 117 The Court went on to observe in the same, paragraph 18 of the judgement that '[w]orkers would be unable to enforce the principle of equal pay before national courts if evidence of a prima facie case of discrimination did not shift to the employer the onus of showing that the pay differential is not in fact discriminatory'. C-127/92, Enderby v Frenchay Health Authority and Secretary of State for Health, [1993] ECR 1-5535. See also C-109/88, Handels-og Kontorfunktionaerernes forund i Danmark v. Danfoss, [1989] ECR 3199,

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of these provisions is left up to national discretion. According to Article 15 of the Racial Equality Directive, sanctions 'which may comprise the payment of compensation to a victim, must be effective, proportionate and dissuasive'. Although the Equal Treatment Directive does not specify any details on sanctions for breach of its obligations, in a series of cases the Court has applied the general principle of effective judicial protection in order to establish minimum standards in national remedies for sex discrimination cases. 118 It is noted that the Equal Treatment (Amendment) Directive offers a more detailed provision on sanctions, one that goes further than that contained within the Racial Equality Directive. The provision on ensuring 'real and effective compensation or reparation ... for the loss or damage sustained ... as a result of discrimination' 119 appears to codify in legislation the principles established in the Court, most notably in Marschall ( no. 2). Whilst the Commission may have considered it too daring to extend more detailed principles expounded in gender equality case law to the Racial Equality Directive, they shall have a bearing on the future interpretation of the Racial Equality Directive in any event given the emerging process of cross-fertilisation between gender and racial discrimination law. The 'shared commitment' to 'effective, proportionate and dissuasive' sanctions for each of the directives 'implies that the Court should demand equivalent standards in the remedies provided for each ground of discrimination' .120

9.

CONCLUDING COMMENTS: EMERGING FROM THE PAST INFLUENCE OF GENDER EQUALITY

The judicial approach towards cases arising under the Directive will involve an interweaving of principles evolved previously within the field of gender equality in employment and occupation (such as those on positive action and indirect discrimination) with the Directive's own provisions. It is submitted, however, that the Court should also look to alternative points of reference besides its own jurisprudence, given the broad scope of the Directive beyond the employmentrelated focus of gender equality law. In particular, international human rights law should be cemented as a source of inspiration for EU law through decisions under the Racial Equality Directive. There is already a growing normative influence of human rights discourse through the EU Charter of Fundamental Rights that has been already felt in policy proposals and statements emanating from the Community institutions, the European Ombudsman, the opinions of

118 Case C-271/91, Marschall v. Southampton and South-West Hampshire Area Health Authority, [1993] ECR I-4367; Case C-180/95, Draehmpaehlv. Urania Immobilienservice, [1997] ECR I-2195. 119 Equal Treatment (Amendment) Directive Article 6(2). 120 Waddington and Bell above at n. 4 at 609.

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the Court of First Instance 121 and various Advocates-General, 122 and the draft Treaty establishing a Constitution for Europe. The Court should draw on the Charter's equality provision, 123 but also international instruments such as the International Convention on the Elimination of Racial Discrimination, whose normative influence is after all recognised in the Racial Equality Directive. It is submitted that the cross-fertilisation process between the EU's different anti-discrimination measures and the Court's gender equality case law can only be truly progressive if the Court, when shaping the contours and determining the limits of this new area of anti-discrimination law is also open to such influences.

121 Case T-54/99, Max.mobil Telekommunikation Service GmbH v Commission, [2002] ECR II-313, paras 48, 57. In T-112/98, Mannesmannroehren-Werke AG v Commission, [2001] ECR II-729, the plaintiff invoked the Charter but the CFI dismissed the argument on the basis that the contested measure had been adopted before the Charter was proclaimed, paras 15, 76. 122 See AG Tizzano in C-173/99, BECTU, [2001] ECR I-4881; AG Mischo in C-122P & 125/99P, D.v Council [2000] ECR I-4319; AG Jacobs in C-270/99 P, Z v Parliament, [2001] ECR I-9197 and C-50/00 P, Union de Pequefio.1· Agricultures v. Council, [2002] ECR I-6677; AG Geelhoed in C-413/99, Baumbast [2002] ECR I-7091; AG Leger in C-353/99 P, Council v. Hautala, [2001] ECR I-9565; AG Stix-Hackl in C-60/00, Carpenter [2002] ECR I-6279. 123 Article 20.

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Part IV Non-Legal Measures for Achieving Equality and Non-Discrimination

[16] Article 10

Fareda Banda States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women: (a) The same conditions for career and vocational guidance, for access to studies and for the achievement of diplomas in educational establishments of all categories in rural as well as in urban areas; this equality shall be ensured in pre-school, general, technical, professional and higher technical education, as well as in all types of vocational training; (b) Access to the same curricula, the same examinations, teaching staff with qualifications of the same standard and school premises and equipment of the same quality; (c) The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other

(d) (e)

(f)

(g) (h)

types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods; The same opportunities to benefit from scholarships and other study grants; The same opportunities for access to programmes ofcontinuing education, including adult and functional literacy programmes, particularly those aimed at reducing, at the earliest possible time, any gap in education existing between men and women; The reduction of female student drop-out rates and the organization of programmes for girls and women who have left school prematurelys The same opportunities to participate actively in sports and physical education; Access to specific educational information to help to ensure the health and wellbeing of families, including information and advice on family planning.

A. Introduction I. Education as a Human Right: International and Region.al Perspectives

B.

Travaux Preparatoires I. Article lO(a) II. Article lO(b) III. Article lO(c) IV. Article lO(f) V. Article lO(g) VI. Article l O(h)

C. Issues oflnterpretation I. Taking All Appropriate Measures II. Equality I. Article IO(a) 2. Article 10(6)

254 255 256 257 257 258 258 258 258 259 259 260 260 262

* Forthischapter and the chapter on art 14, I would like to thank ElizabethAsham for invaluable research assistance. I would also like to thank Sara Waldron and Meredith Owen. Special thanks are also due to Frances Raday, Janie Chuang, and Rikki Holtmaat.

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Article JO 3. Article IO(c) a) Encouraging Coeducation 4. Article l0(d) 5. Article l0(e) 6. Article 10( f) 7. Article 10 (g) 8. Article !O(h) D. Equality in Context I. Formal Equality II. Moving Beyond Formal Equality III. Substantive Equality IV. Transformative Equality V. Direct Discrimination VI. Indirect Discrimination VII. Temporary Special Measures (TSMs) VIII. Intersectional Discrimination E. States Parties' Obligations I. The Nature of State Obligations II. Implementation 1. Obligation to Respect 2. Obligation to Protect 3. Obligation to Fulfil III. Reservations

263

265 265 266 267 269 269 270 271

271 271 272

273 273 274 274 275 275 275 275 276 276 278

A. Introduction [E]ducation is a key to the advancement of women and the low level of education of girls and women remains among the most serious impediments to their full enjoyment of human rights and the achievement of women's empowerment. 1

Article 10 is the first of the economic, social, and cultural rights in the Convention and arguably the most important, facilitating the enjoyment of other rights. 2 Article 10 focuses on the negative impact of discrimination on the realization of the right co education for women and girls. Education is broadly defined to include primary school, vocational training, and functional literacy programmes. Article 10 also aims to meet the educational needs of those girls3 and women who have had to leave education prematurely. Crucially, Article 10 includes the requirement that States parties provide information on family health and welfare and' information and advice on family planning.' 4 Furthermore, Article 10 also requires that in providing education, the State should not discriminate between the sexes by ensuring that resources (human and material) are of equal quality and quantity. To facilitate the entry and retention of girls in institutions oflearning, it is provided that women and girls should be given the same opportunities to access and to 1 CO Sierra Leone, CEDAW/C/SLE/CO/5 (2007) para 30. See also CO Malawi, CEDAW/C/MWI/ CO/5 (2006) para 28; CO Turkey, CEDAW/C/TUR/CO/6 (2010) para 32. 2 N Burrows, 'The 1979 Convention on the Elimination of all Forms of Discrimination against Women' (1985) 32 Netherlands Intl L Rev 419,435. CO Viemam, CEDAWIC/VNM/CO/6 (2007) para 19; CO Haiti, CEDAW/C/HTI/CO/7 (2009) para 31; CO Guinea-Bissau, CEDAW/C/G:\fB/CO/6 (2009) para 34. 3 Article 10 includes the only specific mention of girls, but the Convemion is constructed to apply to women and girls, see GR 28 para 21 and see the discussion in rhe ch on an I. 4 Art l0(h).

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benefit from scholarships and educational grants. Article 10 further requires States parties to allow women and girls the same opportunities to engage in sport and other leisure activities in education. Specific references to education and the provision of information can also be found in Articles 5(6) on parental roles, l l(l)(c) on employment, 14(2)(6) and (d) on rural women, and 16(l)(e) on family and marriage relations. The CEDAW Committee has yet to produce a general recommendation focusing specifically on Article I 0. However, it has mentioned the importance of education and the provision of information in a number of its other general recommendations. 5 The Committee also asks States parties to provide training to service providers and the public in its concluding observations. 6 In its recommendations in both the communications and inquiry procedures under the Optional Protocol, the Committee has enjoined States parties to train service providers and personnel including police and judges to tackle the shortcomings identified. 7 The Committee has received one communication directly on Article 10, which will be considered in the interpretive section of this chapter. 8

I. Education as a Human Right: International and Regional Perspectives The right to education has been recognized within both international9 and regional1° human rights instruments. The UNESCO Convention against Discrimination in Education is particularly important; like the Convention, it is not only about preventing and eradicating discrimination but also about facilitating the substantive realization of education rights for all. 11 CESCR General Comment 13 on the right to education is particularly useful in analyzing the obligations of States with respect to education because of its typology of the goals in respect to the full realization of the right to education. 12 1he four 'As', described as inter-related and essential, require that education be available, accessible, acceptable,

5 GR5; GR6 para2; GR 9; GR 10 paras 1. 2, and4; GR 14 paras (a)(i), (iii), (iv), (b), (c); GR 15 paras (a)-(c); GR 18; GR 19 paras 11, 24(6), 24(d), 24(f), 24(q) and 24(t)(ii); GR 21 para 22; GR 23 paras 20(a), 32, 45(c), 48(h), and 50(c)-(d); GR 24 paras 13, 18, 28, and 31(6)-(c); GR 25 paras 2, 23, 31, 32, and 37; GR 26 paras 10, 13, 24(b)(i-vi), and 26(g); GR 28 paras 37(d) and (e). 6 CO Timor-Leste, CEDAW/C/TLS/CO/1 (2009) para 46; CO Russia, CEDAW/C/USR/CO/7 (2010) paras 35 and 53; CO France, CEDAW/C/FRA/CO/6 (2010) para 30; CO Turkey, CEDAW/C/TUR/CO/6 (2010) paras 13 and 21; CO Sierra Leone CEDAW/CISLE/C0/5 (2007) para 13. See also CEDAW OP art 13. 7 AT v Hungary CEDAW Communication 2/2003 (2005) CEDAW/C/32/D/2003, views adopted at 32nd Session, para (d); Report on Mexico produced by the Committee under CEDAW OP art 8 and the reply of the Government of Mexico, CEDAW/C/2005.OP.8/Mexico para 278. 8 AS v Hungary CEDAW Communication 4/2004.(2006) CEDAW/C/36/D/4/2004. 9 See M Ssenyonjo, 'Non-State Actors and Economic, Social and Cultural Rights in M Baderin and RMcCorquodale, Economic, Socia/and Cultural Rights in Action' (2009) 359-73; UDHRart 26; Convention relating to the Status of Refugees arts 4 and 22; ICESCR arts 13 and 14; ICCPR art 18(4); CRC arts 28 and 29; !LO Convention 169 arts 26-9 and 31; ICMW arts 30, 43, 45(l)(a)-(b), and 45(2)-(4); CRPD arts 4(1) (h), 4(2), 8(1)(a)-(c), 8(2)(6) and 24. 10 Ssenyonjo (n 9 above) 373-6; Protocol 1 ECHR art 2; ESC arts 7(3) and 17(1); EU Charter art 14; Banjul Charter arts 17 and 25; ACRWC art 11(3); Protocol on the Rights ofWomen in Africa arts l(f), 2(2), 4(2)(d)-(f), 5(a), 5(c), 8(c), !0(2)(a), 12, 14(2)(g), 18(2)(6) and (c); Additional ProtocolACHR (Protocol of San Salvador) art 13; Convention ofBelem do Para arts 2(6), 6(6), and 8(a), (c), (e), (f) and (i);Arab Charter art 41. " UNESCO Convention against Discrimination in Education arts 5(e), 5(v), and 7. 12 CESCR, 'General Comment!3' (1999) CN Doc E/C.12/1999/10. See also CESCR "General Comment 11' (1999) UN Doc E/C.12/1999/4.

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Article JO

and adaptable.13 'Accessibility requires the State to ensure that there is no discrimination and that education is physically and economically 'accessible to all, especially the most vulnerable groups, in law and fact'. Acceptability is about ensuring minimum standards and good quality in curricula and teaching methods. It also requires that the education be culturally appropriate. Adaptability requires that education should be flexible enough to meet the changing demands of societies and ro respond ro their needs. A number of mechanisms within the human rights framework look at the right to education and specifically, education of girls and the attainment of gender equality generally. 14 The UN Special Rapporteur on Education has analyzed how girls' right to education is often impeded. 15 The Beijing Declaration and Platform for Action examines the reasons for the lower levels of participation of girls in education compared ro boys and makes recommendations to governments on how to reverse this situation. 16 The UNESCO Education for All (EPA) goals include a gender-equality goal.17 These goals led to the inclusion ofuniversal primary education and the promotion ofgender equality and empowerment of women in the Millennium Development Goals (MDGs). 18 The MDGs are part of a non-binding global blueprint to reduce extreme poverty and to facilitate the realization of the targets set out in the eight goals by 2015. Reporting on progress made in realizing the MDGs has now been incorporated into the CEDAW process. 19

B. Travaux Preparatoires The first draft was proposed by the Philippines and USSR using the Declaration on the Elimination of Discrimination against Women, 1967 (DEDAW) Article 9 as the basis. The Philippines draft also referenced ICES CR Article 13(1) for its vision of the aims of a good education. 20 Sweden added to the DEDAW reference the importance of consulting the UNESCO Convention. 21 DEDAW Article9 reads as follows: All appropriate- measures shall be taken to ensure to girls and women, married or unmarried, equal rights with men in education at all levels, and in particular:

13 CESCR General Comment 13 para 6. See also CESCR 'General Comment 16' (2005) UN Doc E/C.12/2005/5 para 30; UNCHR, 'Preliminary Reporrof the Special Rapporteur on the right to Education, Ms Katarina Tomasevski' (1999) UN Doc E/CN.4/1999/49. See also K Tomasevski, Human Rights Obligations in Education (2005). 11 See also UNGA, 'UN Decade for Human Rights Education and Midterm Review of the Office of the High Commissioner for Human Rights' (2000) UN DocA/55/360. 15 UNCHR, 'Report submitted by the Special Rapporteur on the Right to Education, Mr M. Villalobos: Girls' Right to Education' (2006) UN Doc E/CN.4/2006/45. 16 See Beijing Declaration and Platform for Action (1995) Strategic Objectives B ('Education and Training of Women') and L ('The Girl Child'). 17 UNESCO, 'Dakar Framework for Action' (2000); UNESCO, 'Education for All Monitoring Reports', especially UNESCO, 'The Leap to Equality' (2003). See also UNESCO, 'World Declaration on Education for All' (1990). See also accessed 31 December 2010. 18 UN Millennium Development Declaration (2000) Goal 2 ('Achieve Universal Primary Education') has as one of its targets: 'Ensure that, by 2015, children everywhere, girls and boys alike, will be able to complete a full course of primary schooling'. 19 CO Cambodia, CEDAW/C/KHM/CO/3 (2006) para 26; CO Vietnam, CEDAW/C/VNM/CO/6 (2007) para 21; CO Sweden, CEDAW/C/SWE/CO/7 (2008) para43; CO The United Kingdom, CEDAW/C/ UK/CO/6 (2008) para 298; CO Cameroon, CEDAW/C/CMR/CO/3 (2009) para 53. 20 LA Rehof, Guide to the UN Convention on the Elimination of all Forms of Discrimination against Women 21 Ibid. (1993) 112.

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257

(a) Equal conditions of access to, and study in, educational institutions of all types, including universities and vocational, technical and professional schools; (b) The same choice of curricula, the same examinations, teaching staff with qualifications of the same standard, and school premises and equipment of the same quality, whether the institutions are co-educational or not; (c) Equal opportunities to benefit from scholarships and other study grants; (d) Equal opportunities for access to programmes of continuing education, including adult literacy programmes; (e) Access to educational information to help in ensuring the health and well-being of families.

The final Article 10 reflects much of the above. Three new provisions were added. These include l0(c) on the elimination of stereotyped concepts of roles for men and women; lO(f) on the reduction of female student drop-out rates and authorizing programmes to ensure that those who have left school early re-enter; and l0(g) on the same opportunities to participate in sports and physical education. One stylistic difference is that in the final Article 10 the phrases 'equal rights' and 'on a basis of equality' are only used in the chapeau to the article and in Article lO(a); the rest of the article uses the 'same' whereas in DEDAW 'equal' and the 'same' are used interchangeably throughout the article. There is no difference in meaning; the central objective of the article and, indeed, the whole Convention, is that it requires States parties to eliminate all discrimination against women and to ensure that women are entitled to the same (equal) conditions in accessing all types of education with teachers and materials of equal quality. There were some changes to DEDAW provisions, notably the deletion, at the suggestion of the United Kingdom (opposed by Indonesia), of the phrase 'married or unmarried' in the chapeau to DEDAW Article 9.

I. Article IO(a) Article lO(a) of the Convention on accessing 'educational establishments of all categories' was amended to include the explicit requirement that all types of education be available 'in rural as well as in urban areas'. Preschool institutions were also added. 22 Belgium added 'career guidance'. 23 The International Labour Organization observer noted that vocational education should not be separated from vocational training provided for in Article 11 on employment and that this phrase should be added to article l0(a), which it was. 24 Rehof observes that the article was accorded 'considerable latitude in its drafting'. 25

II. Article IO(b) Japan suggested that Article 10(6) on equal access to the same curricula and examinations be replaced by 'equal access to the same curricula and examinations of the same or equivalent standard'. While 'equivalent' is used in Article 2(a) of the UNESCO Convention, the United Kingdom's proposed use of the word 'same' was preferred and accepted. 26 At the suggestion of Morocco and New Zealand the words 'whether the institutions are co-educational or not' were deleted. A suggestion made by India, that a further paragraph be inserted into paragraph (6), making provision for special educational institutions and scholarships to bridge the gap

22 25

Ibid 113-14. Ibid 112.

26

23 Ibid 114-15. Ibid 116.

24

Ibid 114-15. See also the discussion in ch on art 11.

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Article JO

between boys' and girls' education, was said to be best considered in a discussion under Article 4 on temporary special measures. 27 India raised this issue again in the discussion of lowering of the female drop-our rates by using temporary special measures in paragraph (f), and again it was said to be better suited to Article 4. 28

III. Article IO(c) This paragraph was added at the suggestion of Belgium which called for the 'speedy achievement of co-education'. The Commission on the Status of Women (CSW) adopted the paragraph and added a reference to the elimination of gender stereotypes. 29 The debate that followed included Hungary noting that the provision was already reflected in Article 5. There was also some discussion about whether the aim of co-education was to eliminate stereotyping, with the United States, supported by the UNESCO observer, querying whether co-education was the only means of eliminating gender stereotyping. 30 Rehof notes: 'The aim of the article was "the speedy achievement of co-education". The secondary point of the provision ("stereotyped concepts") at this stage became the main point in the final version.' 31 The draft suggested by Iran is closest to the final version. 32

IV. Article IO(f) In addition to seeking to reduce drop-out rates, States, led by Senegal, were keen to provide remedial measures to facilitate a return to education for women and girls who had been forced by circumstance to leave prematurely, hence the addition of'programmes for girls who have left school too early'. 33 The provision is unique in being the only one in the Convention that expressly mentions girls. 34

V. Article IO(g) This is a new provision, there being no mention of sport in DEDAW. A suggestion by Belgium that States also provide 'psycho-sexual education' was resisted. States including Argentina, France, and the USSR suggested that to ensure as wide a ratification of the Convention as possible, provisions that were 'overtly explicit' should be avoided. The phrase was duly dropped and the draft submitted by Cuba stating 'the same right to participate actively in sports and physical education' became the final version. 35

VI. Article IO(h) Many states and organizations participated in the discussion on this final paragraph. 36 The Philippines noted that no existing international instrument included a reference to education in family planning.37 The Swedish view was that the Convention should not 'make a specific link between women and family planning education since this should be 28 Ibid 116, 119. Ibid. Ibid 116. See also Convention art 5 and the discussion in ch on art 5. 30 Ibid 117. Thedebatecominued, 118. 31 Ibid 117. 32 Ibid 118. 33 Ibid 119. See also ibid 120. 34 GR 28 notes that girls are included in the Convention's entire coverage 'since girls are within the larger community of women and are more vulnerable to discrimination in such areas as access to basic education' para 21. cf Protocol on the Rights of Women in Africa art l(k) explicitly defining women as including girls. 35 Rehof (n 20 above) 120. 36 See also the discussion in the ch on art 12. 37 Rehof(n 20 above) 120. 27 29

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seen as a shared responsibility' and not solely the responsibility of women. 38 The UNESCO representative participating as an observer, focused on the education content suggesting that it included the provision of education and information on 'family planning, childcare education of pre-school age children and community development'. 39 The observer from the International Planned Parenthood Federation, supported by Denmark, proposed including 'advice and services'. 40 However, after an objection from Colombia noting that the word services applied to the right of couples to decide on the number and spacing of their children, the word 'services' was deleted and replaced by access to 'information and advice', thus changing the language ofDEDAW Article 9(e). 41 Finally, the same seven States that convened a working group on what eventually became Article 14, suggested that the rights of rural women to receive family planning education and services be included. This suggestion is now included in article 14(2)(6). 42

C. Issues oflnterpretation States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women:

While the Committee has not adopted a general recommendation on Article 10, State party obligations under this provision can be discerned through an examination of the Committee's General Recommendation 28. 43 Article 10 imposes both negative and positive obligations on the State. States parties are required to eliminate all discrimination against women in accessing education and also to take steps to facilitate the realization of the right to education. 44 Elements ofArticle 10 focus on access and equal opportunities for girls and women (both negative and positive obligations), and other elements point at the necessity of changing the content of educational materials and curricula so they no longer form an obstacle to equal opportunities for women or continue to reinforce gender stereotypes. The latter elements point to a positive obligation of States parties to bring about fundamental changes in educational materials and curricula.

I. Taking All Appropriate Measures The Committee has, in its interpretation of 'all appropriate measures', taken a holistic approach. It has given each State party latitude in devising polices that will be appropriate for its particular circumstances and that can eradicate discrimination impeding women's enjoyment of their rights. Each State party must be able to justify 'the appropriateness of the means ... chosen' and to demonstrate 'whether it will achieve the intended effect and result.' 45 In its consideration of Article 10, the Committee regularly urges States parties: To take measures to eliminate traditional attitudes which perpetuate discrimination and noncompliance with the provisions of article 10 of the Convention. It recommends that the State party take measures to ensure equal access for girls and women to all levels of education and to ensure the retention of girls in school, including through temporary special measures in accordance with article 4, paragraph 1, of the Convention and the Committee's general recommenda-

38 42 45

40 Ibid. 41 Ibid. 39 Ibid 121. Ibid. 43 GR28 para 6. See also the discussion in ch on art 14. GR 28 para 23. See further section E of this ch on Stare obligations.

44

Burrows (n 2 above) 437.

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tion 25. The Committee calls on the State party to improve the literacy level of girls and women through the adoption of comprehensive programmes of formal and non-formal education, adult education and training, and the allocation of adequate financial resources. 46

II. Equality The requirement in Article 10 that education be enjoyed 'on a basis of equality between men and women' reiterates the principle enunciated in the preambles to the UDHR and the convention that men and women are equal in dignity and rights. Article 10 requires the State party to make the 'same' provision for the education of men and women.47 'Same' here goes beyond a formal understanding of equality. The 'same' in Article 10 is not about equivalence, or about treating 'likes alike' or indeed only about passing laws, although that is clearly important. Rather, the Convention requires States parties to recognize that only a substantive understanding, and implementation, of equality policies will suffice. 48 By also requiring measures that aim for structural change of the educational system and the content of educational materials to abolish gender stereotyping, the Committee calls for transformative equality as well. The use of the peremptory 'shall take' in Article 10 makes clear that the State party is required to take as comprehensive an approach as possible to the guarantee of discrimination-free access to education. 49

I. Article JO(a) The Convention adopts a life cycle model of education progressing from preschool to adulthood. Unlike the UDHR, ICESCR, and CRC, which specify that only primary education is compulsory and should be provided free of charge, the Committee does not make chis distinction, seeing all levels and aspects of education as equally important. Discrimination against girls in access to education often starts at a very young age. Learning stereotyped gender roles at the preschool stage can impact on the child's educational experiences in later years. The Committee constructs the States parties' obligation to provide education for all in its widest terms, noting concern, for example, about 'inadequate educational and rehabilitative programmes for women prisoners'.' 0 The Committee has also hrghlighced the impact of wars, including civil conflict, on the ability of children in general and girls in particular to access education.'1 Moreover, the Committee has identified the access

46 CO Burundi, CEDAW/C/BDI/CO/4 (2008) para 32. See also CO Angola, A/59/38, 31st Session (2004) para 159; CO India, CEDAW/C/IND/CO/3 (2007) paras 33, 34, 35, and 49; CO Jordan, CEDAW/C/JOR/ CO/4 {2007) para 30; CO Tajikistan, CEDAW/C/TJK/CO/3 (2007) para 28; CO Serbia, CEDAW/C/SCG/ CO/1 (2007) para 30; CO Switzerland, CEDAW/C /CHE/CO/3 (2009) para 36; CO Malawi, CEDAW/C/ MWI/CO/6 (2010) para 31; CO Mauritania, CEDAW/C/MRT/CO/1/(2007) para 25. 47 Art IO(a), (b), {d), (e), and (g). See further section D below on Equality. 48 GR 25 para 8; GR 28 para 24; Monrreal Principles on Women's Economic, Social and Cultural Rights (2004) Human Rights Quarterly 760 para 9. See also CESCR, 'General Commenr 16' (2005) UN Doc E/C.12/2005/4 paras 7, 8, and 14; S Fredman, 'Providing Equality: Substantive Equality and the Positive Oury to Provide' (2005) 21 South African] on Human Rights 163, 165-6. 49 GR28 para 21. 5° CO The United Kingdom, CEDAW/C/UK/CO/6 in A/63/38, 41st Session (2008) para 266. See also CO Germany, CEDAW/C/DEU/CO/6 (2009) para 58. 51 CO Sierra Leone, CEDAW/C/SLE/CO/5 (2007) para 30; CO Colombia, CEDAW/C/COL/CO/6 (2007) para 30; CO Liberia, CEDAW/C/LBR/CO/6 {2009); Special Rapporreur on the Right to Education (n 15 above) paras 114-20.

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difficulties encountered by other groups including migrant and other minority women and 'girls living on the streets'. 52 Apart from Article 14, Article lO(a) is the only provision in the Convention that expressly refers to rural women. 53 The Committee has noted that rural women, who may include indigenous women and women of different castes or ethnic groups, suffer from higher rates of illiteracy. Concluding one State party report, it expressed concern 'that only 0.2 per cent of women farmers have formal vocational training in agriculture and only 0.3 per cent a polytechnic or university degree in this field'. 54 The same 'access to studies' requires States parties to remove discriminatory policies, legal, physical, socio-economic, or cultural barriers that impede women and girls from accessing education. 55 Furthermore, the Committee has noted that a violation of the right to equal access to educarion involves the provision of poor quality or inadequate education as well as the denial of education. 56 While the Committee praises States parties for 'the high enrolment rates of girls and women at all levels of education', 57 it is clear that a substantial discrepancy remains in participation rates between male and female students at the secondary and higher levels as well as in access to vocational training. 58 This has led the Committee to express concern about 'the lower number of female students at the Ph D level, as well as in competitive research institutions'. 59

52 CO Egypt, CEDAW/C/EGY/CO/7 (2010) para 31. See also CO Lao People's Democratic Republic, CEDAW/C//LAO/CO/1-5 (2005) para 23; CO Cambodia, CEDAW/C/KHM/CO/3 (2006) para 26; CO Serbia, CEDAW/C/SCG/CO/1 (2007) paras 29-30; CO India, CEDAW/C/IND/CO/3 (2007) paras 32-3; CO Germany. CEDAW/C/DEU/CO/6 (2009) para 34; CO Vietnam, CEDAW/C/VNM/CO/6 (2007) para 21; CO Saudi Arabia, CEDAW/C/SAU/CO/2 (2008) paras 29-30; CO Luxembourg, CEDAW/C/ LUX/CO/5 (2008) paras 25-6. 53 See also art 14(2)(d) of the Convention and the discussion in ch on art 14. 54 CO Portugal, CEDAW/C/PRT/CO/7 (2008) para 48. See also CO Bhutan, A/59/38, 30th Session (2004) paras 117-18; CO Argentina, A/59/38, 31st Session (2004) para 376; CO Nigeria, A/59/38, 30th Session (2004) para 304; CO Nepal, A/59/38, 30th Session (2004) para 204; CO Ireland, A/60/38, 33rd Session (2005) para 392; CO Malawi, CEDAW/C/MWI/CO/5 (2006) para 27; CO Fiji, CEDAW/C/FJI/ CO/4 (2010) para 29; CO Albania. CEDAW/C/ALB/CO/3 (2010) paras 30-1. 55 CO Vanuatu, CEDAW/C/VUT/CO/3 (2007) paras 30-1; CO Malawi, CEDAW/C/MWI/CO/5 (2006) paras 27-8; CO Saudi Arabia, CEDAW/C/SAU/CO/2 (2008) para 29; CO Guinea-Bissau, CEDAW/C/ GNB/CO/6 (2009) paras 33-4. The CESCR divides access into three categories: physical, economic, and nondiscrimination. CESCR, 'General Comment 13' (1999) UN DocE/C.12/1999/10 para6(a). 56 S Pimentel, 'Education and Legal Literacy' in HB Schopp-Schilling and C Flinterman (eds), ?he Circle ofEmpowerment: Twenty Five Years of the UN Committee on the Elimination of Discrimination against Women (2007) 90, 95. 57 CO Kuwait, CEDAW/C/KWT/CO/2 (2004) para 59. See also CO Algeria, CEDAW/C/DZA/CO/2 (2005) para 14; CO Samoa, CEDAW/C/WSM/CO/1-3 (2005) para 17. 58 CO The Netherlands, CEDAW/C/NLD/CO/5 (2010) para 34; UN Millennium Development Goal Report (2009) 15-16. 59 CO Cyprus, CEDAW/C/CYP/CO/5 (2006) para 23. See also CO Armenia, CEDAW/C/ARM/CO/4/ Rev.1 (2009) paras 30-1; CO New Zealand, A/58/38, 29rh Session (2003) paras 409-10; CO Nepal, A/59/38, 30th Session (2004) para 204; CO Albania, CEDAW/C/ALB/CO/3 (2010) para 30; CO Rwanda, CEDAW/C/RWA/CO/6 (2009) para 31; CO Angola, A/59/38, 31st Session (2004) para 158; CO Gambia, CEDAW/C/GMB/CO/1-3 (2005) para 37; CO Turkey, CEDAW/C/TUR/CO/6 (2010) para 30; CO Kenya, CEDAW/C/KEN/CO/6 (2007) para 33; CO Vanuatu, CEDAW/C/VUT/CO/3 (2007) para 30; CO Zambia, A/57/38, 27th Session (2002) para 247; CO Egvpt, CEDAW/C/EGY/CO/7 (2010) para 31. See also UN Millennium Developmenr Goal Report (2009) 16 and 17.

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2. Article JO(b) Both the CEDAW Committee and the Special Rapporteur on Education have noted that quality education is a prerequisite of equality. 60 The Committee has expressed concern about the impact of poor educational infrastructure on women and girls: reflected in the low budgetary allocation; the lack of, or insufficient number of, schools and teachers; and the poor quality of education (resulting in) a high rate of illiteracy among girls and women, their low enrolment rates in primary, secondary, vocational and higher education, in both urban and rural areas, and in their high drop-out rates. 61

Even where education of girls is separate from that ofboys, curricula, facilities, and teachers are to be of the same quality and to be free from discrimination. The Committee engages States parties about curricula content: The report indicates that curricula for girls and boys are at the point of being standardized between the sexes from kindergarten through secondary school levels. Please provide further information on this standardization, and its content at the different levels of schooling. Please elaborate in particular whether any measures are being taken to eliminate stereotypical attitudes about the roles and responsibilities ofwomen and men in textbooks, curricula and teacher training, to encourage girls to participate in non-traditional educational, vocational, or professional streams, and to open to women and girls all areas of study in the scientific and technical areas. 62

Similarly, rural children and those who are sometimes placed in separate schools, including disabled children, are not to be disadvantaged by poor or inadequate facilities and education. 63 Moreover, the Committee has said that there should not be discrimination in the provision of equal quality education dependent on other grounds including minority or other status. 64 Article 10(6) also requires that there be no discrimination against women in entering the teaching profession, because their presence in educational institutions plays an important symbolic and mentoring role in challenging gender stereotypes about women's work and abilities and provides employment. 65 The Committee has expressed concern 'at the low number of women in academia, as professors, senior lecturers and researchers, 6 ° CO Nepal, A/59/38, 30th Session (2004) para 362; CO Haiti, CEDAW/C/HTI/CO/7 (2009) para 23; CO Nigeria, A/59/38, 30th Session (2004) para 303; UNCHR, 'Report submitted by the Special Rapporteur on the Right to Education, Mr M. Villalobos: The Righr ro Educarion' (2005) UN Doc E/CN.4/2005/50 paras 107-8. 61 CO Angola,A/59/38, 3lsr Session (2004) para 158. See also CO Liberia, CEDAW/C/LBR/CO/6 (2009) para 32; CO Tajikistan, CEDAW/C/TJK/CO/3 (2007) para 27. 62 List of questions Initial and Second Report Saudi Arabia, CEDAW/C/SAU/Q/2/Add.l (2007) 19-20. See also CO Malaysia, CEDAW/C/MYSICO/2 (2006) para 15; CO Estonia, CEDAW/C/EST/CO/4 (2007) para 12; CO Haiti, CEDAW/C/HTI/CO/7(2009) paras 20-1. See also CO Jamaica, CEDAW/C/JAM/ CO/5 (2006) para 31; CO Moldova, CEDAW/C/MDA/CO/3 (2006) para 19; CO India, CEDAW/C/IND/ CO/3 (2007) paras 34-5; CO Jordan, CEDAW/C/JOR/CO/4 (2007) para 19; CO Niger, CEDAW/C/NER/ CO/2 (2007) para 30. 63 CO Vanuatu, CEDAW/C/VUT/CO/3 (2007) para 30; CO Fiji, CEDAW/C/F]I/CO/4 (2010) para 29. 64 CO Paraguay, A/60/38, 32nd Session (2005) paras 291-2; CO Nepal, A/59/38, 30th Session (2004) para 204; CO Turkey, A/60/38, 32nd Session (2005) paras 371-2; CO Israel, CEDAW/C/ISR/CO/3 (2005) para 35; CO Canada, A/58/38, 28th Session (2003) para 363; CO India, CEDAW/C/IND/CO/3 (2007) para 32. 65 CO Brazil. A/58/38; 29th Session (2003) paras 122-3; CO Fiji, CEDAW/C/FJI/CO/4 (2010) para 29; CO Jamaica, CEDAW/C/JAM/CO/5 (2006) para 31; CO Mali, CEDAW/C/MLI/CO/5 (2006) para27; CO Norway, CEDAW/C/NOR/CO/7 (2007) para 17; Pimentel (n 56 above) 93. See also 'Special Rapporteur on the Right to Education' (2005) (n 60 above) paras 107-8.

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and at the decision-making levels in the area of education'. 66 It has recommended that 'the image of teachers be improved through further salary increases, the media and other public forums. The Committee also recommends that additional training be provided to teachers to update their knowledge and teaching methods in the current context of gender equality'. 67 Research undertaken in monitoring the UNESCO EFA goals has identified high teacher attrition rates, especially in rural areas, as one of the reasons for lower participation levels of girls in education. 68 States parties are obliged to address these situational inequalities by providing adequate money, housing, and other infrastructure services to facilitate teacher retention. Moreover, adequate healch care is required, including antiretroviral drugs to address the high AIDS-related death rates of teachers, particularly women educators who are disproportionately impacted. Discriminatory policies impacting on women's ability to teach have included the expulsion offemale teaching students from colleges due to pregnancy. The Convention was cited in a Zimbabwean case challenging the decision of a private Christian teacher training college which expelled a married :woman student who had fallen pregnant during her course in breach of the rules. Citing the Convention, her counsel noted, and the court found, that the rule requiring pregnant students to leave impacted solely on women and was a breach of the right to education, and discriminatory on grounds of sex and gender. 69 Article 10 of the Convention was cited in a case on stereotyping from Hong Kong, Equal Opportunities Commission v Director ofEducation. 70 The case was brought by the Equal Opportunities Commission and challenged the assignment of boys and girls to secondary schools. Although the schools were all public, some were considered to be particularly good and were thus over-subscribed. In making assignments, the authorities decided to try to 'balance out' the sexes by increasing the allocation of spaces for boys. 1his practice was based on the argument that girls, who did better on the secondary school entrance examination which formed the basis of the assignment, had an inherent advantage because 'girls matured faster than boys,' and the boys should not be prejudiced by their delayed maturity in accessing the better schools. The Equal Opportuniries Commission challenged this practice, based on gender stereotyping, as constituting discrimination against girls. The court found for the Commission and cited Convention Articles 2(a)-(d), 4(1), and 10 in this regard. 71 It found that the discrimination was directly imputable to the gender stereotyping that formed the basis of the policy. 3. Article JO(c) This provision builds on and reinforces Article lO(b). The travaux preparatoires to Article lO indicate that the common aim of States was, in the words of the Kenyan

66 CO Armenia, CEDAW/C/ARM/CO/4/Rev.l (2009) para 30. See also CO The Netherlands, CEDAW/C/ NLD/CO/3 (2010) para 35; CO Rwanda, CEDAW/C/RWNCO/6 (2009) para 31; CO Japan, CEDAW/C/ JPN/CO/6 (2009) para 43; CO Jordan, CEDAW/C/JOR/CO/4 (2007) paras 29-30. 67 CO Tajikistan, CEDAW/C/TJK/CO/3 (2007) para 28; CO Nepal, CEDAW/C/NPL/CO/3 (2004) paras 204-5; CO Norway, CEDAW/C/NOR/CO/7 (2007) para 18. 68 UNESCO, 'Teacher Attrition Rates in Sub-Saharan Africa' (2010) 11 er seq. 69 Mandizvidza v ChadukaNO, Morgenster College and the Minister ofHigher Education 1999 (2) ZLR 375 (HC). See also CO Belize, CEDAW/C/BLZ/CO/4 (2007) para 23. 70 Equal Opportunities Commission v Director of Education HCLA 1555/2000 reported in 2001 2 HKLRD690. 71 Ibid paras 88 If (see especially paras 109-10).

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delegation, 'to eliminate any stereotyped concept of masculine and feminine roles at all levels and in all forms of education'. 72 To this end, teaching materials are to be created that are free of gender stereotyping. 73 Similarly, teaching methods are to be adapted to challenge all forms of discrimination including 'forms that are not explicitly mentioned in the Convention or that are emerging'. 74 The Committee presses States parties about the impact of stereotyped education, including curricula, on women's life chances and choices including in employment. 75 Instruction that promotes gender stereotypes by providing 'female'-focused subjects for girls is not permitted. 76 111e Committee has commented on the 'low participation of girls and women in secondary and tertiary education, including in technology and science-related courses', which may also point to gender-based discrimination in 'tracking' girls into certain study areas. 77 The Committee also engages States parties about 'traditional attitudes that constitute obstacles to girls' education'. 78 Ir has expressed concern at 'the practice of cross-timetabling, or conflicting class schedules that effectively prevent girls from pursuing courses of study traditionally offered to boys'. 79 The Committee urges States parties to take a comprehensive and holistic approach to address gender stereotyping, encouraging them 'to use all forms of education-formal and informal-including the socialization process through parenting and community social interaction, to eradicate negative stereotypes, attitudes and practices'. 80

72 Rehof (n 28 above) 117. See also arr 5; R Holrmaar, Towards Different law and Public Policy: the Significance ofarticle 5a CEDAWfar the Elimination of Structural Gender Discrimination (2004); E Sepper, 'Confronting the "Sacred and Unchangeable": The Obligation to Modify Cultural Patterns under the Women's Discrimination Treaty' (2008) 30 University ofPennsylvania] Intl L 585, 594. 73 Special Rapporteur on the Right to Education (n 15 above) para 104 noting how 'Women teachers' and girls' low expectadons are reinforced by textbooks, curricula and assessment material, in which no female figures appear'. See also paras 18-31 and especially paras 19, 21, 24, 25 (on the Convention and rhe Committee) and 28. 74 GR 28 para 15. 75 CO Bosnia-Herzegovina, CEDAW/C/BIH/CO/3 (2006) para 10; CO Republic of Korea, CEDAW/C/ KOR/CO/6 (2007) para26; CO Serbia, CEDAW/C/SCG/CO/1 (2007) para 19; CO Maldives, CEDAWiC/ MDV/CO/3 (2007) para 18; CO Pakistan, CEDAW/C/PAK/CO/3 (2007) paras 36-7; CO France, CEDAW/C/FRA/CO/6 (2008) paras 18-19; CO Australia, CEDAW/C/AUS/CO/7 (2010) paras 36-7; CO Turkey, CEDAW/C/TUR/CO/6 (2010) paras 30-1; CO Bolivia, CEDAW/C/BOL/CO/4 (2008) para 20. 76 CO Bahrain, CEDAW/C/BHR/CO/2 (2008) paras 32-3; CO Turkey, CEDAW/C/TUR/CO/6 (2010) para 30; CO France, CEDAW/C/FRA/CO/6 (2008) para 18; CO Azerbaijan, CEDAW/C/AZE/ CO/4 (2009) para 29; CO Australia, CEDAW/C/AUS/CO/7 (2010) paras 36-7; CO Brazil, A/58/38, 29th Session (2003) para 122. 77 CO Bhutan, A/59/38, 30th Session (2004) para 113. See also CO Croatia, CEDAW/C/CRO/CO/2-3 (2005) para 33; CO Israel, CEDAW/C/ISR/CO/3 (2005) paras 35-6; CO St Lucia, CEDAW/C/LCA/ CO/6 (2006) para 27; CO Bosnia-Herzegovina, CEDAW/C/BIH/CO/3 (2006) para 31; CO Slovakia, CEDAW/C/SVK/CO/4 (2008) para 18; CO Luxembourg, CEDAW/C/LUX/CO/5 (2008) paras 15 and 25; CO Switzerland, CEDAW/CHE/CO/3 (2009) para 35. 78 CO Nigeria, CEDAW, A/59/38, 30th Session (2004) para 304; CO Benin, CEDAW/C/BEN/CO/1-3 (2005) para 30; CO St Lucia, CEDAW/C/LCA/CO/6 (2006) para 28; CO Bhutan, CEDAW/C/BTN/CO/7 (2009) para 25; CO Guinea-Bissau, CEDAW/C/GNB/CO/6 (2009) paras 33-4; CO Vanuatu, CEDAW/C/ VUT/CO/3 (2007) para 31; CO Liberia, CEDAW CEDAW/C/LBR/CO/6 (2009) para 33; CO Bolivia; CEDAW/C/BOL/CO/4 (2008) para 20; Combined 3rd, 4th and 5th Periodic Reporr Paraguay, CEDAW/C/ PAR/3-4 (2005) 263; CO Botswana, CEDAW/C/BOT/CO/3 (2010) para 31. 79 CO Jamaica, CEDAW/C/JAM/CO/5 (2006) para 31. 8 ° CO Laos, CEDAW/C/LAO/CO/7 (2009) para 22; See also CO Lebanon, CEDAW/C/LBN/CO/3 (2008) para 25; CO Haiti, CEDAW/C/HTIICO/7 (2009) para 21; CO Jordan, CEDAW/C/JOR/CO/4 (2007) para 20.

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a) Encouraging Coeducation Encouraging coeducation does not require States parties to make it compulsory, for as noted by the United States during the drafting of the Convention 'it is not the only way of eliminating the stereotyped image of masculine and female roles'. 81 Indeed, coeducation may not be appropriate; in some regions separate schools are the norm, and seeking to overturn that norm may lead to girls no longer being allowed to go to school. 82 If coeducation is not in place, the State party must guarantee equality by ensuring that quality education-access to the same curricula and teachers trained to the same standard-is respected in separate schools. 83 In States parties which run single-sex institutions, equal numbers of qualified female and male teachers becomes imperative. 84 The Committee has also identified de facto segregation as problematic, not least because of its 'consequences for women's professional opportunities, and the high rate of illiteracy among elderly women and, in particular, among Roma women and girls'. 85

4. Article JO(d) If poverty or a lack of means is one of the chief impediments to the education of girls and women, then providing scholarships and other forms of assistance becomes crucial. 86 The Committee sees the provision of scholarships as essential to the acceleration of women's participation in education and to the realization of equality between men and women. It has praised those States parties that have set up scholarship schemes for girls. 87 It praised one State party for eliminating difficulties for women in its Student Loan Scheme. 88 The Committee has highlighted that rural girls (and their parents) particularly need financial assistance and other incentives to encourage them to remain in school. 89 The Committee has also urged States parties to 'ensure that women have equal access with men to governmental loans and scholarships for pursuing higher education abroad'.90 The Special Rapporteur on Education has noted that although the abolition of fees in many States has led to an increase in the number of girls attending school, the quality of education has declined sharply because the necessary additional teaching staff have not been recruited.91 This calls for the provision of grants and scholarships to facilitate women's access to teacher training colleges.

Reh of (n 20 above) 117. Combined Initial and Second Report Saudi Arabia, CEDAW/C/SAU/2 (2008) 30. See also CESCR GR 13 para 6(c): 'Acceptability' provides that 'the form and substance' of education must be 'relevant, culturally appropriate and of good quality'. (1999) UN Doc E/C.12/1999/10 para 6(c). 83 CO Mauritius, CEDAW/C/MAR/CO/5 (2006) paras 24-5. 84 Rehof(n 20 above) I 16 85 CO Bosnia-Herzogovina, CEDAW/C/BIH/CO/3 (2006) para 24. See also CO Egypt, CEDAW/C/ EGY/CO/7 (2010) para 32. 86 CO Fiji, A/57/38, 26th Session (2002) paras 60-1. 87 CO Cameroon, CEDAW/C/CMR/CO/3 (2009) para22; CO Turkey, CEDAW/C/TUR/CO/6 (2010) para 30; CO Ethiopia, A/59/38, 30th Session (2004) para 240; CO Zambia, A/57/38, 27th Session (2002) para 229. 88 CO New Zealand, A/58/38, 29th Session (2003) para 409. See also CO Ethiopia, CEDAW/C/ETH/ CO/I (2004) para 240. 89 CO Vanuatu, CEDAW/C/VUT/CO/3 (2007) para 31; CO Bhutan, CEDAW/C/BTN/CO/7 (2009) para 26; CO Haiti, CEDAW/C/HTI/CO/7 (2009) para 31. Responses to the list of questions and issues, Saudi Arabia, CEDAW/C/SAU/Q/2/Add (2007) para 20 (p 19); CO Ecuador, CEDAW/C/ECU/CO/7 (2008) para 31. 9 ° CO Bhutan, CEDAW, A/59/38, 30th Session (2004) para 114. See also Responses to the list of issues and questions Saudi Arabia, CEDAW/C/SAU/Q/2/Add. l (2007) para 23 91 See Special Rapporteur on the Right to Education (2005) (n 60 above) paras 29-30. 81

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The Committee has pressed States parties about the existence of additional charges and expenses such as purchasing school uniforms, bench levies, and other ancillary costs which are likely to impact disproportionately on girls' access to education, especially if the family has limited resources. 92 With this in mind, the Committee commended a State party for the steps taken: in the area of education with the assistance of the international community, donor organizations and non-governmental organizations, such as school feeding programmes and the provision of microloans to parents who send their girls to schools ... and the 2006 resolution ... which established a 50 per cent quota in granting scholarships. 93

5. Article IO(e) The travaux prtfparatoires indicate that in including this provision, States were keen to mitigate the difficulties and disadvantages faced by women who may have had to leave school early, or who may not have received any education at all. 94 The word 'functional' was included before 'literacy' at the behest of the UNESCO observer' in order to cover programmes teaching reading and writing while imparting practical knowledge'. 95 The Committee has expressed concern about the continuing discrepancies in literacy rates between men and women, such as 'the high rate of illiteracy, which in 2004 stood at 71 per cent for girls and women ... which clearly demonstrates patterns of discrimination under article 10'.96 It has also identified the particular problems faced by older rural, indigenous, and minority women.97 The Committee has highlighted the importance of addressing the problem of illiteracy as a matter of urgency, including by using

92 CO New Zealand, CEDAW/C/NLZ/CO/6 (2007) paras 32-3; CO Albania, CEDAW/C/ALB/ CO/3 (2010) para 30; CO Fiji, CEDAW/FJI/CO/4 (2010) para 28. See Decision T-170/03 Mora vBogota District Education Secretary and Others (28 February 2003) Colombian Constiturional Courr, where the transport and opportunity costs to a mother on a low income of having to send her child to a school in a zone different from that in which they lived were held to impinge on the right to education, leading the Colombian Constitutional Court to order the authorities to assign her a school closer to her home. See also Mohini Jain v State ofKarnataka (1992) 3 SCC 666, 1992 AIR 1858, India Supreme Court. 93 CO Guinea-Bissau, CEDAW/C/GNB/CO/6 (2009) para 33. See also CO Barbados, CEDAW, A/57/38, Exceptional Session (2002) para 222; CO Zambia, A/57/38, 27th Session (2002) para 229; CO Mauritania, CEDAW/C/MRT/CO/1 (2007) para 36. 94 See Rchof (n 20 above) 118. SIDA, Lifelong learning in the South-Critical Issues and Opportunities for Adult Education (2004); Protocol on rhe Rights of Women in Africa art 12(2)(a) and (c). 95 Rehof (n 20 above) 118. See also CESCR, 'General Comment 13' (1999) UN Doc E/C.12/1999/10 paras 15-16. 96 CO Sierra Leone, CEDAW/C/SLE/CO/5 (2007) paras 30-1; CO Benin, CEDAW/C/BEN/CO/1-3 (2005) para29; CO Mauritania, CEDAW/C/MRT/CO/1 (2007) para 35; CO Morocco, CEDAW/C/MAW/ CO/4 (2008) para 26; CO Saudi Arabia, CEDAW/C/SAU/CO/2 (2008) para 29. 97 GR 27 para 19; CO Malawi, CEDAW/C/MWI/CO/5 (2006) para 27; CO Turkey, CEDAW/C/ TUR/CO/6 (2010) para 30; CO Australia, CEDAW/C/AUS/CO/7 (2010) para 41; CO Paraguay, A/60/38, 32nd Session (2005) para 291; CO El Salvador, A/58/38, 28th Session (2003) para 263; CO Equatorial Guinea, A/59/38, 31st Session (2004) para 193; CO Lao People's Democratic Republic, A/60/38, 32nd Session (2005) para 94; CO Morocco, A/58/38, 29th Session (2003) para 171; CO Yemen, A/57/38, Exceptional Session (2002) para 386; CO Peru, A/57/38, Exceptional Session (2002) para 490; CO Gambia, A/60/38, 33rd Session (2005) para 207; CO Zambia, A/57/38, 27th Session (2002) paras 246-7; CO Guatemala, CEDAW/C/GUA/CO/7 (2009) paras 27-8; CO Ecuador, CEDAW/C/ECU/ CO/7 (2008) paras 30-1.

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temporary special measures. 98 It has commended States parties which have put resources into addressing women's illiteracy. 99 The Committee has noted that adult and functional literacy programmes may go beyond teaching basic numeracy and reading skills to incorporate gender and legal literacy which can have a transformative effect on women's lives. 10°Committee expert Silvia Pimentel contends: Legal literacy is a crucial tool that empowers women to get past all the 'doorkeepers' standing in their way, so that they can finally reach and move through the 'gate' oflaw. The CEDAW Convention and its Committee provide key concepts and tools for women, in any part of the world, to pass the 'doorkeepers' and go through the 'gate' to enjoy their rights.' 01

For this reason, the Committee has urged States parties to publicize the Committee's decisions on communications under the Optional Protocol. 102

6. Article JO(j) Premature departure from school, usually as a result of early marriage or pregnancy, affects girls and women in many States parties. 103 The Committee has, in General Recommendation 24 and in concluding observations, urged States parties to desist from expelling students because they are pregnant. 104 It has also urged States parties to provide opportunities for premature school leavers to complete their education, while commending those which have made provision for completion. 105 In its questioning of one State party, the Committee requested information on: measures taken or envisaged to promote an educational setting that eliminate all barriers that could impede the schooling of pregnant adolescents and young mothers, including physically

98 CO Lao People's Democratic Republic, CEDAW/C/LAO/CO/7 (2009) para 33; CO Peru. A/57/38, Exceptional Session (2002) para 491; CO Yemen, CEDAW/C/YEM/CO/6 (2008) para 25; CO Nigeria, A/59/38, 30th Session (2004) para 304; CO Angola, A/59/38, 31st Session (2004) para 159. 99 CO Samoa, A/60/38, 32nd Session (2005) para 45; CO Bangladesh, A/59/38, 31st Session (2004) para 233; CO Uganda, A/57/38, Exceptional Session (2002) para 128. 10° CO Bolivia, CEDAW/C/BOL/C0/4 (2008) paras 17 and 32; CO Lebanon, CEDAW/C/LBN/C0/3 (2008) paras 15 and 25. '° 1 Pimentel (n 56 above) 97. 102 ATvHungaryCEDAWCommunication 2/2003 (2005) CEDAW/C/32/0/2003 para 9(7). See also eg CO Russian Federation, CEDAW/C/USR/CO/7 (2010) para 15. 103 CO Equatorial Guinea, A/59/38, 31st Session (2004) para 193; CO Liberia CEDAW/C/LBR/CO/6 (2009) para 32; CO Nepal, A/59/38, 30th Session (2004) para 204; CO Suriname, A/57/38, 27th Session (2002) paras 57-8; CO Zambia, A/57/38, 27th Session (2002) para 246; CO Benin, CEDAW/C/BEN/ CO/1-3 (2005) para 30; CO Belize, CEDAW/C/BLZ/C0/4 (2007) paras 23, 24, and 27; CO Bhutan, CEDAW/C/BTN/CO/7 (2009) para 26. 104 GR 24 para 28; CO Togo, CEDAW/C/TGO/C0/3 (2006) paras 24-5; CO Suriaame, A/57/38, 27th Session (2002) para 57; CO Zambia, A/57/38, 27th Session (2002) para 246; CO Jamaica, CEDAW/C/ JAM/CO/5 (2006) para 32; CO Malawi, CEDAW/C/MWJ/CO/6 (2010) para 31; CO Kenya, CEDAW/C/ KEN/CO/6 (2007) para 33; CO Cook Islands, CEDAW/C/COK/CO/1 (2007) para 30. 105 CO Suriname, A/57/38, 27th Session (2002) paras 57-8; CO Congo, A/58/38, 28th Session (2003) para 171; CO Equatorial Guinea, A/59/38, 31st Session (2004) para 194; CO Cape Verde, CEDAW/C/CPV/ CO/6 (2006) para 26; CO Rwanda, CEDAW/C/RWA/CO/6 (2009) para31; CEDAW CO Fiji, CEDAW/C/ FJI/CO/4 (2010) para 28; CO Panama, CEDAW/C/PAN/C0/7 (2010) paras 36-7. See also Pimentel (n 56 above) 97; UNICEF, 'State of the World's Children' (2004) 86. Special Rapporteur on the Right ro Education (n 60 above) paras 71-9, 94, and 133.

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accessible childcare facilities and to encourage those young mothers who are responsible for the care of their children to complete their schooling. 106

The Committee has also identified early and forced marriage as problems and enjoined States parties to enact minimum ages for marriage and to ensure that they are the same for men and women. 107 The age specified, eighteen, is designed both to ensure physical maturity as a precursor to childbirth and also to try to keep girls in school for as long as possible. Research indicates that the rate of early marriage falls with increased girls' enrolment in secondary school. 108 The Committee has addressed the issue of sexual harassment as a factor chat sometimes leads to girls abandoning school prematurely. It has noted that 'the lack of trained and qualified teachers, especially female teachers, may increase girls' vulnerability to violence and abuse in schools'. 109 It has noted that rural girls are often targeted and sexually harassed on the way to school, thus impacting attendance and retention. 110 A lack of toilets leads to absenteeism and premature departure from school. It affects girls disproportionately, particularly with the onset of menses. 111 Work, including home chores such as collecting firewood and getting water, may impact upon a girl's ability to access and stay in education. 112 Failure to take note of the implications of these work requirements in the design of education policy can constitute gender-based discrimination. The Committee has identified the high incidence of child labour as a barrier to education. It asked a State party to take steps to ensure that children, 'especially girls, have access to basic education ... and the protection of minimum labour standards elaborated by the International Labour Organization'. 113 To offset the opportunity costs of attending school, States parties may be required to consider making monetary payments or grants available to girls and women hampered by survival pressures that often lead them to give l0 6 List of Issues and Questions: Kyrgyzstan, CO CEDAW/C/KGZ/Q/3/Add.l (2008) Pre-Session Working Group, 42nd Session, para 19. See also CO Belize, CEDAW/C/BLZ/CO/4 (2007) para 23; CO Liberia, CEDAW/CILBR/CO/6 (2009) para 33; CO El Salvador, CEDAW/C/SLV/CO/7 (2008) para 30. 107 GR 21 paras 36, 38, and 39. CO Cambodia,CEDAW/C/KHM/CO/3 (2006) para 26; CO Jamaica, CEDAW/CIJAM/CO/(2006) para 40; CO Jordan, CEDAW/C/JOR/CO/4 (2007) paras 35 and 36; CO Bolivia, CEDAW/CIBOL/CO/4 (2008) paras 44 and 45; CO Borswana, CEDAW/CIBOTICO/3 (2010) paras 31 and 32. See also Art 16(2), ACRWC, Art 21(2), Prorocoi on the Rights ofWomen in Africa, Art 6(b); CESCR, 'General Comment 14' (2000) UN Doc E/C.12/2000/4 para 22; CCPR, 'General Comment 28' (2000) UN Doc CCPR/C/21/Rev.l/Add.lO para 23; Special Rapporteur on the Right on Education (n 1 above) paras 73-5 and 78. 108 Millennium Project, Taking Action: Achieving Gender Equality and Empowering Women, Taskforce on Education and Gender Equality (2005) 36 ff. See in particular boxes at 40 and 49; K Watkins, 7he OXFAM Education Report (2000) 195-8; Beijing Declaration and Platform for Action (1995) Strategic Objective L4 paras 279-80. See also CO Bolivia, CEDAW/C/BOL/CO/4 (2008) para 44; CO Fiji, A/57/38, 26rh Session (2002) paras 60-1. 109 CO Guinea-Bissau, CEDAW/C/GNB/CO/6 (2009) paras 33-4. See also CO Lao People's Democratic Republic, CEDAW/C/LAO/CO/7 (2009) para24; CO Haiti, CEDAW/C/HTI/CO/7 (2009) 23; Combined Third, Fourth and Fifrh Reports: Paraguay, CEDAW/C/PAR/3-4 (2005) 263; CO Ecuador, CEDAW/C/ ECU/CO/7 (2008) para 32; Protocol on the Rights of Women in Africa art 12(l)(c). uo Initial report of Scares Parries, South Africa, CEDAW/C/ZAF/1(1998) para 119; CO Timor-Leste, CEDAW/C/TLS/CO/1 (2009) para 35; CO Liberia, CEDAW/C/LBR/CO/6 (2009) paras 32-3. lll CO Yemen, CEDAW/C/YEM/CO/6 (2008) para 25; CESCR, 'Statement on the Right to Sanitation' (2010) UN DocE/C.12/45/CRP.l para 5. 112 CO Mozambique, CEDAW/C/MOZ/CO/2 (2007) para 30; CO Myanmar, CEDAW/C/MMR/CO/3 (2008) para 34; CO Morocco, CEDAW/C/MAW/CO/4 (2008) paras 26-7; UNDP, 'Beyond Scarcity: Power, Poverty and the Global Water Crisis' (2006) 47. 113 CO Guatemala, A/57/38, Exceptional Session (2002) paras 202-3. See also CO India, CEDAW/C/ IND/CO/3 (2007) para 49.

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up on formal education. 114 Finally, the Committee has identified a disproportionately high repetition and drop-out rate among rural, minority, and indigenous girls as being of concern. 115

1 Article I O(g} The Committee has not paid much attention to this provision. It has however, noted the impact of women's and girls' heavy workloads as barriers to their taking part in sport and physical activities. In light of the information provided in a State party report, that 'stereotypes limit substantially the participation of most poor girls in cultural, sport and other leisure activities' because the girls have to assist mothers in income-generating activities, the Committee requested that the State party 'provide detailed information on any strategies the Government may be contemplating to promote participation of girls especially from rural areas in cultural, sport and other leisure activities and on changing sex role stereotypes that limit such participation'. 116 The Committee has also taken an intersectional approach urging one State party to 'ensure that girls in prison are provided with a full programme of educational activities, including physical education'. 117

8. Article I O(h) This provision speaks to the importance of providing a base from which decisions about family size and other health related issues can be made. 118 General Recommendation 24 provides that there should not be discrimination in the provision of information on sexual health, education, and services for women and girls. 119 While Article lO(h) is drafted in gender-neutral terms, women bear the disproportionate burden of reproduction. This is recognized by the Committee in its General Recommendation 21: Decisions to have children or not, while preferably made in consultation with spouse or partner, must not nevertheless be limited by spouse, parent, partner or Government. In order to make an informed decision about safe and reliable contraceptive measures, women must have information about contraceptive measures and their use, and guaranteed access to sex education and family planning services, as provided in article 10 (h) of the ConventionP0

The Committee has read Article lO(h) with Article 10(0 on premature departure from school as a result of pregnancy. It has recommended that a State party 'ensure that sex education programmes are widely promoted and targeted at girls and boys, and include special attention to the prevention of early pregnancies'. 121

114 CO Albania, CEDAW/C/ALB/CO/3 (2010) para 30. "' CEDAW CO Uruguay, CEDAW/C/URY/CO/7; CO Spain, A/59/38, 31st Session (2004) paras 3467; CO Israel, A/60/38, 33rd Session (2005) para 256. 116 Pre-sessional working group, Haiti, CEDAW/C/HTI/Q7, 43rd Session (2008) para 26 on art 13. The Special Rapporteur on Education has in his report on the education of girls noted rhat while boys are given space to practise certain sports, 'girls are nor provided with similar space'. Special Rapporteur on the Right ro Education (n 60 above) para 104. See also para 150. 117 CO Germany, CEDAW/C/DEU/CO/6 (2009) para 58. 118 It must be read with arrs 5(6), 12, 14 (2)(b), I6(J)(e), and 16(2). See also the discussion in ch on art 12. 119 See also UNCHR, 'The Right ro Education: Report submitted by the Special Rapporteur, Katarina Tomasevski' (2004) UN Doc E/CN.4/2004/45 para 36 citing art IO (h); CRC, 'General Comment 3' (2004) UN DocA/59/41. 120 GR21 para 22. See also CO Jamaica, CEDAW/C/JAM/CO/5 (2006) para 35. 121 CO Timor-Leste, CEDAW/C/TLS/CO/1 (2009) para 38; CO Namibia, CEDAW/C/NAM/CO/3 (2007) para 22. See also Pimentel (n 56 above) 101.

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Despite the acknowledged benefits of education in general, the prov1S1on of information on family planning, especially to school-aged children, is controversial. 122 Under socio-cultural and religious influences, some States parties are unwilling to include information on sex education or family planning within their educational curricula. 123 The first Special Rapporteur on Education, Katarina Tomasevki, noted that girls have paid the highest price in the political duels which determine the content of school curricula on human sexuality. 124 The Committee is unyielding and unequivocal in its call to States parties to provide information on health and reproductive matters in schools and to the general public. 125 In General Recommendation 24, the Committee notes that States parties have an obligation to ensure that sexual and reproductive health information is provided to both female and male adolescents 'by properly trained personnel in specially designed programmes that respect their rights to privacy and confidentiality'. 126 Furthermore, in General Recommendation 28, the Committee enjoins States parties to pay attention to the 'specific needs of (adolescent) girls by ... carrying out programmes that are aimed at the prevention of HIV/AIDS, sexual exploitation and teenage pregnancy'. 127 Article lO(h) has been the subject of a communication brought to the Committee by a Roma woman who had been sterilized without being given information about the nature of the procedure or the consequences. She had not given her consent prior to the operation being carried out. 128 She claimed a breach of Article lO(h). 129 The State party argued that having had three children previously, the author could be said to have the necessary information on reproductive issues. The Committee found in favour of the author noting, in part, that Article I O(h) had been breached by the failure of the health authorirjes to give proper counselling and information to the applicant before sterilizing her. 130

D. Equality in Context The principles of equality and non-discrimination are overarching. States parties are required to eliminate discrimination wherever it occurs and however caused, and to

122 See eg Gillick v West Norfolk and Wisbech Area Health Authority (1985) 3 All ER 402. cf Complaint 45/2007 International Centre for the Legal Protection ofHuman Rights (INTERIGHTS) v Croatia (30 March 2009) European Committee of Social Rights paras 47, 52, and 59 setting out the criteria for the provision of

sex education and information within the European context.

Special Rapporteur on rhe Right to Education (n 119 above) paras 37 and 39. Special Rapporteur on rhe Right to Education (n I 19 above) para 37. 125 GR 28 para 21; CO Cape Verde, CEDAW/C/CPV/CO/6 (2006) para 26; CO Chile, CEDAW/C/ CHI/CO/4 (2006) paras 17-18; CO Namibia, CEDAW/C/NAM/CO/3 (2007) para 23; CO Uruguay, CEDAW/C/URY/CO/7 (2008) para 39. 126 GR 24 para 18; CRC, 'General Comment 3' (2004) UN Doc A/59/41 paras 6. 7, 9, 11, 15-18, 20, 23, and 38; CRC, 'General Comment 4' (2004) UN DocA/59/41 paras 10, 16, 25-8, 30, 31, 39(b) and 40; Beijing Declaration and Platform for Action (1995) para 267. 127 GR 28 para 21. See also GR 15; UNIFEM Turning the Tide: CEDAW and the Gender Dimensions of the HIV Pandemic (2001). 128 AT v Hungary CEDAW Communication 4/2004 (2006) CEDAW/C/36/D/4/2004 para 3.3. 129 Ibid paras 5.5 and 9.6. To support her argument the author invoked GR 21 para 22. The author also alleged breaches of arts 12 and 16(l)(e) read together with GR 19 and 24 as well as General Comment 28 of the Human Rights Committee; see CCPR, 'General Comment 28' (2000) UN Doc CCPR/C/21/Rev.l/ Add.JO; paras 3.2, 3.4, 3.5, and 3.6. 130 AT v Hungary CEDAW Communication 4/2004 (2006) para CEDAW/C/36/D/4/2004 para 11.2. 123

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take positive measures to ensure the realization of equality between men and women in education. 131

I. Formal Equality Read with Article 1, formal equality in Article 10 requires that the State party take the necessary steps to change the laws and policies removing discriminatory provisions or remedying omissions in the law. 132 Concluding its examination of one State party report, the Committee expressed concern that 'despite strong opposition, the Basic Act on Education has been amended and Article 5, which refers to the promotion of gender equality, has been removed'. 133 Considering Article lO(f), the Committee urged one State party to enact laws prohibiting widespread sexual harassment against women and girls including in education. 134

II. Moving Beyond Formal Equality The Committee requires States parties to move beyond formal equality based on adopting a supposedly 'neutral stance' treating men and women the same, towards the attainment of substantive equality. It has observed that 'although there is legal provision (Law 29) mandating continuation of education for girls during and after pregnancy, there is no effective mechanism in place in order to ensure compliance'. 135 By also requiring measures that aim for structural change of the educational system and the content of educational materials in order to abolish gender stereotyping, the Committee calls for transformative equality as well. u 6

III. Substantive Equality In addition to removing discriminatory laws, substantive equality requires the State party to guarantee that women are enabled to enjoy education in practice, put in place policies to facilitate women's equal participation in education, challenge gender ascriptions in society which may impede women's access to and enjoyment of education, remove structural barriers to women's accessing education as both teachers and learners at all levels, recognize and provide for addressing compound discrimination as a result of intersectional discrimination, and make provision for the use of temporary special measures ro achieve the goal of equal access to education for all. m

GR28; GR25 paras 6-10. CO Canada, A/58/38, 28th Session (2003) para 362; CO Canada, CEDAW/C/CAN/CO/7 (2008) para 43. 133 CO Japan, CEDAW/C/JPN/CO/6 (2009) para 43. 134 CO Haiti, CEDAW/C/HTI/CO/7 (2009) paras 16, 23, and 24. 135 CO Panama, CEDAW/C/PAN/CO/7(2010) para 36. See also CO India, CEDAW/C/IND/CO/3 (2007) para 49; CO Belize, CEDAW/C/BLZ/CO/4 (2007) para 24. 136 GR 28 paras 5 and 9. See also Special Rapporteur on Education (2006) (n 15 above) para 104. 137 See the discussion in ch on art I; GR 28; GR 25 paras 6-10; CO France, CEDAW/C/FRA/CO/6 (2008) para 22; CO Fiji, CEDAW/C/CP/FJI/CO/4 (2010) para 29; CO Australia, CEDAW/C/AUS/CO/7 (2010) paras 2, 13, 26, 40, and 41; CO Turkey, CEDAW/C/TUR/CO/6 (2010) para 31; CO Albania, CEDAW/C/ALB/CO/3 (2010) paras 23 and 31; CO Slovenia, CEDAW/C/SLE/CO/5 (2007) para 18; CO Rwanda, CEDAW/C/RWA/CO/6 (2009) para 32; CO Yemen, CEDAW/C/YEM/CO/6 (2008) para 25; CO Guinea-Bissau, CEDAW/C/GNB/CO/6 (2009) para 34. lJl

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The Committee calls on the State party to strengthen implementation of its efforts to tackle, through the education system, the structural causes of the persistent discriminatory attitudes against women. It calls on the State party to overcome expeditiously the de facto segregation in the education system, and to actively encourage the diversification of educational and professional choices for women and men and offer incentives for young women to enter traditionally male dominated fields of study. The Committee calls on the State party to set a clear time frame for the introduction of gender-sensitive educational curricula and teaching methods that address the structural and cultural causes of discrimination against women, and to incorporate sensitization training for teachers both pre- and in-service. It also invites the State party to monitor systematically the impact of measures taken in relation to stated goals and to take corrective measures whenever necessary. 138

IV. Transformative Equality Transformative equality involves challenging prevailing gender ideology and calls, in the words of General Recommendation 25, for the transfer of power and resources between men and women. 139 Within the context of Article 10, the biggest challenge facing States parties is the engagement with narrow and discriminatory constructs of culture which lead to the denial of the right to education for women and girls. A transformative model of equality demands that States parties confront the culture conundrum and put in place policies to mitigate the negative impact of gender stereotyping on the educational opportunities of girls. The Committee has identified gender-based discrimination as a universal problem affecting women in the richest and poorest States. Despite the existence of awareness raising programmes, the Committee is concerned at the persistence of traditional stereotypes relating to the roles and responsibilities of women and men within the family, in the education system and in society in general, which reinforce their sense of inferiority and affect their status in all areas of life and throughout their life cycle. The Committee is concerned that the most recent educational reform has not dealt with these subjects in depth. 140

Article lO(c) on the elimination of gender stereotypes, points to a revolutionary view of education which requires radical restructuring of society using education as the vehicle for such transformation. The Committee has specifically called on a State party to replace gender-neutral educational curricula with materials that 'address the structural and cultural causes of discrimination against women' which may require that 'gender issues and sensitivity training be made an integral and substantive part of all teacher training'. 141

138 CO Jamaica, CEDAW/C/JAM/CO/5 (2006) para 32. See also CO Belize, CEDAW/C/BEL/CO/6 (2008) para 24; CO Liberia, CEDAW/C/LBR/CO/6 (2009) para 32; CO Egypt, CEDAW/C/EGY/CO/7 (2010) para 32. 139 GR 25 para 8. See also Special Rapporteur on the Right to Education (n 15 above) paras 16 and 20; RJ Cook and S Cusack, Gender Stereotyping: Transnational Legal Perspectives (2010); R Holrmaat and J Naber Womens Human Rights and Culture: From Deadlock to Dialogue (2010). 14° CO Bolivia, CEDAW/C/BOL/CO/4 (2008) para 20. See also CO Norway, CEDAW/C/NOR/CO/7 (2007) paras 17-18; CO Honduras, CEDAW/C/HON/CO/6 (2007) para 26; CO Pakistan, CEDAW/C/ PAK/CO/3 (2007) para 37; CO Jordan, CEDAW/CIJOR/CO/4 (2007) para 19; CO Luxembourg, CEDAW/C/ LUX/CO/5 (2008) para 15; CO Republic of Moldova, CEDAW/C/MDA/CO/3 (2006) para 19; CO Tanzania, CEDAWIC/TZA/CO/6 (2008) para 35; CO Armenia, CEDAW/C/ARM/CO/4/Rev.l (2009) para 20; CO Germany, CEDAW/C/DEU/CO/6 (2009) para 33. 141 CO Finland, CEDAW/C/FIN/CO/6 {2008) para 182.

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V. Direct Discrimination The Committee has identified different treatment of women based on their sex and gender differences as constituting direct discrimination. 142 Considering Article IO(f), the Committee expressed concern that 'in some educational institutions, teenage mothers are not always readmitted to junior secondary schools because of the perception that "the young mothers would have a negative influence on other girls", while teenage fathers are not prevented from attending schools.' 143

VI. Indirect Discrimination The prohibition of indirect discrimination addresses laws or policies that, while genderneutral on their face, may have a detrimental effect upon and impact disproportionately on women. Formal sex neutrality may mask historical disadvantage of women. Moreover, far from being 'neutral' such policies may actually reflect male experiences, thus ignoring women's lived realities. 144 The Committee has noted that the high rate of female illiteracy in many States parties reflects a pattern of both direct and indirect discrimination. 145 A problematic issue identified by the Committee, especially in Europe, has been legal bans on wearing of religious dress in public. Although neutral on their face, the bans may constitute indirect discrimination against (mainly Muslim) girls and women who are impacted disproportionately in being denied access to educational establishments in breach of Article IO(a). 146 Together with the CRC and the CCPR, the Committee has identified the gendered impact of the religious dress rule on women and girls. It has requested that the situation of girls who were being expelled from school as a result of the legislation should be closely monitored together with the 'educational achievements of migrant and immigrant girls at all levels'. 147 Of one State's ban on veil wearing in schools and universities, the Committee has requested an account of'measures taken to eliminate any discriminatory consequences of the ban in the next periodic report'. 148 Requiring the purchase of school uniforms or the levying of administrative and other fees may also constitute indirect discrimination. The Committee has expressed concern

143 CO Suriname, A/57/38, 27th Session (2002) para 57. GR 28 para 16. GR 28 para 16. See also CESCR, 'General Comment 13' (1999) UN Doc E/C.12/1999/10 para 13; CESCR, 'General Comment 16' (2005) UN Doc E/C.12/2005/4 para 13. 145 CO Saudi Arabia, CEDAW/C/SAU/CO/2 (2008) para 29; CO Morocco, CEDAW/C/MAW/CO/4 (2008) para 26; CO Mauritania, CEDAW/C/MRT/CO/1 (2007) para 35. 146 GR 25 para l; CESCR, 'General Comment 13' (1999) UN Doc E/C.12/1999/10 para 13; CESCR, 'General Comment 16' (2005) UN Doc E/C.12/2005/4 para 13. See generally D McGoldrick, Human Rights and Religion: The Islamic Headscarf Debate (2006); Human Rights Watch, Discrimination in the name of Neutrality: HeadscarfBans far Teachers and Civil Servants in Germany (2009); Human Rights Watch, Beyond the Burqa (2009). 147 CO France, CEDAW/C/FRA/CO/6 (2008) paras 20-1; CRC CO France, CRC/C/155/Add.240 (2004) paras 25-6; CCPR CO France, CCPR/C/FRA/CO/4 (2008); CO Turkey, CEDA'JC'/C/TUR/ CO/4-5 (2005) paras 33-4; CO Belgium, CEDAW/C/BEL/CO/6/(2008) paras 35 and 38. See alsoMECfar Education, KwaZulu-Natal and Others v Pillay 2008 I SA 474 (CC) holding that banning a Hindu girl from 142

144

wearing a nose ring to school constituted violations of the rights ro religion and freedom from discrimination

impeding her right to education. 148 CO Turkey, CEDAW/C/TUR/CO/6 (2010) paras 16-17. Rahime Kayan v Turkey, CEDAWCommunication 8/2005 (2006) CEDAW/C/34/D/8/2005 (inadmissible). See also CO France, CEDAW/C/FRA/CO/6 (2008) paras 20-1.

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at the high drop-out rate from secondary education of rural girls and those belonging to linguistic and ethnic minorities due to the 'secondary costs of education'. 149

VII. Temporary Special Measures (TSMs) In General Recommendations 25 and 28, the Committee makes clear that TSMs may be crucial to the acceleration and achievement of equality between men and women. 150 The Committee has proposed that States parties use temporary special measures in areas including sports, culture, and recreation: 'Where necessary such measures should be directed at women subjected to multiple discrimination including rural women.' 151 It has focused on increasing the participation of women as both students and teachers in secondary and higher education. 152 In its General Recommendation 18, the Committee has enjoined States parties to provide information on disabled women, including 'special measures to ensure that they have equal access to education and employment, ... and to ensure that they can participate in all areas of social and cultural life'. 153

VIII. lntersectional Discrimination The Committee has challenged States parties to address intersectional discrimination. 154 Intersectionality recognizes chat there are groups of women who, in addition to sex and gender discrimination, may experience discrimination on other grounds including age, disability, indigineity, race, and sexual orientation, simultaneously. 155 The Committee has identified the failure to guarantee access to education, especially to women from minority or other communities, as impacting disproportionately on them in that it harms their life chances and opportunities. The Committee has identified regional differentiation in education and the negative impact of that especially on minority women. 156 Moreover, the Committee has highlighted the impact of allocating inadequate budgetary resources to particular geographical regions where minority or indigenous communities reside and refusal to provide appropriate language facilities, as issues of particular concern. 157 It urged one State party to consider introducing multilingual education and suggested the deployment of university students to the rural areas to help teach language classes. 158

150 GR25; GR 28 para 20. CO Albania, CEDAW/C/ALB/CO/3(2010) para 30. GR 25 para 38; CO Israel, A/60/38, 33rd Session (2005) para 256; CO Lao People's Democratic Republic, CEDAW/C/LAO/CO/7 (2009) para 34. 152 CO Japan, CEDAW/C/JPN/CO/6 (2009) para44; CO Turkey, CEDAW/C/TUR/CO/6 (2010) para31; CO Albania, CEDAW/C/ALB/CO/3 (2010) paras 23 and 31; CO Uruguay, CEDAW/C/URY/CO/7 (2008) para 33; CO Sierra Leone, CEDAW/C/SLE/CO/5 (2007) para 31. CO Russian Federation, CEDAW/C/ USR/CO/7 (2010) paras 34-5; CO France, CEDAW/C/FRA/CO/6 (2008) paras 24-5; CO Sweden, CEDAW/C/SWE/CO/7 (2008) para 24. 15 3 GR 18. 154 GR 28 para 18; GR27 para 19. 155 K Crenshaw, 'Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscriminadon Doctrine, Feminist Theory and Antiracist Politics' (1989) University of Chicago Legal Forum 139; CERD, 'General Recommendation 25' (2000) UN Doc A/55/18, Annex V; CESCR, 'General Comment 15' (2002) UN Doc E/C.12/2002/11 para 5; CESCR, 'General Comment 20' (2009) UN Doc EiC. 12/GC/20 paras 17-36; Special Rapporteur on the Righr to Education (2005) (n 60 above) paras 87 and 97-101. 156 CO Serbia, CEDAW/C/SCG/CO/1 (2007) para 29; CO Turkey, CEDAW/C/TUR/CO/6 (2010) para31; CO Albania, CEDAW/C/ALB/CO/3 (2010) para 30. 157 CO Turkey, CEDAW/C/TUR/CO/6 (2010) para 31. See also Complaint 13/2002 Autism Europe v Francr Case (2002) European Committee of Social Rights. 158 CO Lao People's Democratic Republic, CEDAW/C/LAO/CO/7 (2009) para 34. 149

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The Committee has called on States parties to use temporary special measures to address the barriers blocking access to education for indigenous and minority women. 159

E. States Parties' Obligations

I. The Nature of State Obligations The chapeau to Article 10 provides that the State party is required to take 'all appropriate measures' to eliminate discrimination against women in order to facilitate their enjoyment of the right to education. 160 The Committee has taken a comprehensive approach to what is appropriate. 161 It has recommended that measures may include: changing the law, ensuring education and social policy is gender-sensitive and facilitates equal access to quality education for women and girls, ensuring adequate infrastructural services including transport and sanitation, facilitating training and retention of female teaching staff especially at the higher levels of education, challenging and removing negative cultural and other barriers to women accessing education or which lead to their leaving prematurely, using gender-disaggregated data at all levels of education to measure progress, providing education that takes on board differences in language, that addresses the urban/rural divide and that is gender-sensitive. The Committee has also called on States parties to provide financial assistance to enable girls to receive an education and recommended the use of international aid to assist in the realization of Article 10 objectives while acknowledging the efforts of chose chat have done so. 162

II. Implementation The obligations of States parties to respect, protect, and fulfil rights have been explored by the Committee in General Recommendations 24 and 28 and apply equally to Article 10. 163 The Committee has noted: States parties have the responsibility to ensure that legislation and executive action and policy complywith these three obligations. They must also put in place a system which ensures effective judicial action. Failure to do so will constitute a violation .... 164

1. Obligation to Respect The obligation to respect requires the State party to refrain from taking action which will hinder the enjoyment of the right to education. 165 It also places on States parties the 159 CO Romania, CEDAW/C/ROM/CO/6 (2006) para27; CO Uruguay, CEDAW/C/URY/CO/7 (2008) para 45. See also CO Bolivia, CEDAW/C/BOL/CO/4 paras 15, 17, and 32; CO Israel, A/60/38, 33rd Session (2005) para 256. See alsoACRWC art 11(3)(e) calling on States parties to 'rake special measures in respect of female, gifted and disadvantaged children'. 160 Burrows (n 2 above) 437 on the State's dual obligations. 161 GR 28 para 23. 162 CO Timor-Lesre, CEDAW/C/TLS/CO/J (2009) para 36; CO Russian Federation, CEDAW/C/USR/ CO/7 (2010) para34; CO Fiji, CEDAW/C/FJI/CO/4 (2010) paras 28-9; CO Guinea-Bissau, CEDAW/C/ GNB/CO/6 (2009) para 33; CO Vanuatu, CEDAW/C/VUT/CO/3 (2007) para 31; CO Cyprus, CEDAW/C/ CYP/CO/5 (2006) paras 23-4; CO Sima Leone, CEDAW/C/SLE/CO/5(2007) para 31; CO Albania, CEDAW/C/ALB/CO/3 (2010) para 31; CO The United Kingdom, CEDAW/C/UK/CO/6 (2008) para 263; CO Finland,A/63/38, 41st Session (2008) para 165. 163 GR 24 paras 13-18; GR 28 paras 9 and 16 ff. See also CESCR, 'General Comment 13' (1999) UN Doc E/C.12/1999/10 paras 46, 47, and 50. The CESCR further notes char the three obligations must be understood in respect of the 4 As (availability, accessibility, acceptability, adaptability). 165 GR 28 para 9. 164 GR 24 para 13.

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duty to make education free from any kind of discrimination. The Committee has done a great deal to address barriers to access under Article IO(a) calling upon one State parry: 'to provide safe transportation to and from schools as well as safe educational environments free from discrimination and violence'. 166 The Committee has expressed concern about the high rate of sexual harassment against girls, including in education, noting 'the lack of adequate training for teachers to address such harassment'. 167

2. Obligation to Protect The obligation to protect requires positive action by the State party to make provision for the effective enjoyment of the right and to ensure that third parties do not, by their actions, violate the right to education of women and girls including by refusing to allow them to go to school. 168 Where education is provided in private institutions or by religious or other non-State entities, it should still conform to the equality standard ensuring that there is no sex or gender discrimination in the construction of curricula or the delivery of education. Concluding the examination of one State party report, the Committee reiterated: its concern about the influence of the church on girls' and young women's right to education. In that regard, the Committee repeats its concern that schools remain free to expel girls because of pregnancy, that only a few secondary schools allow girls to continue their education after pregnancy and that schools are allowed to dismiss unwed teachers who become pregnant. 169

3. Obligation to Fulfil The obligation to fulfil requires that the State party facilitate access to and provide for the realization of women's rights. This may require it to adopt appropriate measures which include legislative, administrative, and judicial action, adequate budgetary allocations, and the adoption of policies which enhance the enjoyment of the right to education. 170 The Committee noted its appreciation of a State party's 'non-discriminatory provisions in the education law, the various proactive measures and programmes aimed at increasing the participation of girls in the school system, the literacy programmes targeting mainly women, as well as the flexible arrangements to allow girls who drop out of school to continue their studies'. 171 The Committee enjoins States parties to ensure that discriminatory laws are amended and also that the laws are implemented and enforced: while commending one State party for having enacted legislation proscribing sexual harassment, it noted that in practice, there was still a high incidence of sexual violence in schools. 172 The Committee has reminded one State party of its legal obligations to ensure access to economic, social and cultural rights including education for the people living in territory that it occupies. 173 In its consideration of AS v Hungary, under Article IO(h) the Committee recommended that the State consider amending those parts of the Public Health Act that gave discretion

CO Timor-Leste, CEDAW/C/TLS/CO/1 (2009) para 36. CO Finland, A/63/38/, 41st Session (2008) para 181. 168 GR 28 para 9; CO Tajikistan, CEDAW/C/TJK/CO/3 (2007) para 28. 169 CO Belize, CEDAW/C/BLZ/CO/4 (2007) para 23. See also CO Jordan, CEDAW/C/JOR/CO/4 (2007) para 19; CO Tajikistan, CEDAW/C/TJK/CO/3 (2007) para 28. 170 GR 28 paras 9 and20; CESCR 'General Comment 13' (1999) UN Doc E/C.12/1999/10 para 46. 171 CO El Salvador, CEDAW/C/SLV/CO/7 (2008) para 29. 172 Ibid para 23. See also CO Austria, CEDAW/C/AUT/CO/6 (2007) para 30. 173 CO Israel, CEDAW/C/ISR/CO/3 (2005) paras 23-4. 166

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a physician to sterilize without the provision of information when he or she deemed it necessary. 174 The Committee has urged States parties to provide training on changes in legislation and implementation measures to police, judges, health personnel, media, community, and religious leaders. It has also recommended targeting awareness raising campaigns for the benefit of affected women and girls. 175 The Committee has highlighted the role that the media can play in realizing Article lO(c) and (h), urging one State: to

to encourage public dialogue on the educational choices girls and women make and their subsequent opportunities and chances in the labour market. It recommends that awareness raising campaigns be addressed to both women and men and that the media be encouraged to project positive images of women and of the equal status and responsibilities of women and men in the private and public spheres. 176

The Committee has been vigilant in calling the attention of States parties to the discriminatory impact of practices and policies on the lives of women and children and has been urging them to close the educational opportunity gap by using temporary special measures. 177 The Committee has highlighted the importance of monitoring progress including setting clear time frames and benchmarks 'for the introduction of gender-sensitive educational curricula and teaching methods' 178 and also by collecting data, requiring: 'that data on school retention, completion and achievement in literacy and numeracy be disaggregated and cross-tabulated on the basis of sex, ethnicity and geographical location to ensure that the needs of specific groups can be identified and appropriate interventions applied to eliminate sex-based disparities.' 179 The Committee recognizes the importance of making adequate budgetary provision to facilitate access to education especially for minority and other under-represented women. In this regard, the Committee also recommends the provision of scholarships. 180 Focusing on rural girls and women, the Committee has urged States parties to take steps to mitigate their particular disadvantage and discrimination by providing books, transport fees, and incidental costs to facilitate access. 181 Adequate boarding facilities for girls

AS v Hungary CEDAW Communication 4/2004 (2006) CEDAW/C/36/D/4/2004 para l l .5(Il). CO 1he United Kingdom, A/63/38, 41st Session (2008) paras 277 and 279; CO Bolivia, CEDAW/C/ BOL/CO/4 (2008) para 20; CO Uruguay, CEDAW/C/URY/CO/7 (2008) para 21. 176 CO Lebanon, CEDAW/C/LBN/CO/3 (2008) para 25. See also CO Haiti, CEDAW/C/HTI/CO/7 (2009) para 21. 177 CO Liberia, CEDAW/C/LBR/CO/6 (2009) para 33. See also GR 25 paras 31, 32, and 37; CO Yemen, CEDAW/C/YEM/CO/6 (2008) para 25; CO Guinea-Bissau, CEDAW/C/GNB/CO/6 (2009) para 34; CO Timor-Leste, CEDAW/C/TLS/CO/1 (2008) para 36. 178 CO Jamaica, CEDAW/C/CO/5 (2006) para 32. See also CO India, CEDAW/C/IND/CO/3 (2007) para 33. 179 CO Australia, CEDAW/C/AUS/CO/7 (2010) para 37. See also CO Libyan Arab Jamahiriya, CEDAW/C/ LBY/CO/5 (2009) para 32. 18 ° CO Samoa, A/60/38, 32nd Session (2005) para 43; CO Albania, CEDAW/C/ALB/CO (2010) para 30; CO Myanmar, CEDAW/C/MMR/CO/3 (2008) para 34; CO India, CEDAW/C/IND/CO/3 (2007) paras 32-3. 181 CO Uruguay, CEDAW/C/URY/Q/7/Add.l (2008) para 32; CO Lao People's Democratic Republic, CEDAW/C/LAO/CO/7 {2009) para 33; CO Haiti, CEDAW/C/HTI/CO/7 (2009) para 31; CO lv!alawi, CEDAW/C/MWI/CO/5 (2006) para27; CO Vanuatu, CEDAW/C/VUT/CO/3 {2007) para31; CO GuineaBissau, CEDAW/C/GNB/CO/6 (2009) para 34; CO Fiji, CEDAW/C/FJI/CO/4 (2010) para 28. 174

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Article JO

have also been recommended. 182 The Committee has also highlighted the importance of international cooperation by means of aid and other support in the delivery of the right to education. 183

III. Reservations There are no reservations to Article 10. However, a number of reservations to other provisions in the Convention may impact on the enjoyment of the right to education free from sex and gender discrimination. These include the many reservations to Article 16 on marriage and family relations on grounds of personal status laws which may specify different ages of marriage for boys and girls. Moreover, reservations to Article 15(4) based on male guardianship- may affect the ability of girls and women to study abroad or to live away from home. This has a direct impact on women, violating their freedom of movement, and an indirect impact in denying them educational opportunities. 184 Similarly, reservations to Article 5 on stereotyping have potentially negative effects on women's ability to enjoy Article 10 rights free from discrimination.

182 CO Vanuatu, CEDAW/C/VUT/CO/3 (2007) para 30; CO Maldives, CEDAW/C/MDV/CO/3 (2007) para 27. 183 CO Sierra Leone, CEDAW/C/SLE/CO/5 (2007) para 31; CO Niger, CEDAW/C/NER/CO/2 (2007) para 30, CO Mauritania, CEDAW/C/MRT/CO/6 (2007) para 36; CO Burundi, CEDW/C/BDI/CO/4 (2008) para 32. 184 F Banda, Project on a Mechanism to Address Laws that Discriminate against Women (2008) 90.

[17] THE NEGLECTED PILLAR: THE "TEACIIlNG TOLERANCE" PROVISION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION Steplumie Farrior• As we celebrate the fiftieth anniversary of the Universal Declaration of Human Rights' this year, I would like to take particular note of the first of the core human ri_mts treaties developed since adoption of the Universal Declaration, the International Convention on the Elimination of All Forms of Racial Discrimination.2 Adopted in 196S by unanimous vote of the United Nations General Assembly, the Convention was followed in 1966 by adoption of the two Covenants: the Covenant on Economic, Social and Cultural Rights, 3 and the Covenant on Civil and Political Rights.4 As other writers have pointed out, the Race Convention soon became the most widely ratified of the core human rights treaties. It was only in 1993 that it was passed in number of ratifications by the Convention on the Rights of the Child. 5 One reason the Racial Discrimination Convention had such widespread support is that many states viewed it as being primarily a statement against apartheid; others saw it as targeting both apartheid and colonialism. But they did not view it as being applicable, or even needing application, with.in • Professor of Law, Pennsylvania State University, Dickinson School of Law; LL.M. Harvard Law School, J.D. American University, M.A. University of Pmlsylvania. 1. Universal Convention of Hwnan Rig)lts, Dec. 10, 1948, G.A. Res. 217 A(DI), U.N. Doc. A/810, at 71 (1948). 2. International Convention on die Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, G.A. Res. 2106A (XX), U.N. GAOR. 660, U.N.T.S. 195, entered into force

Jan. 4, 1969.

3. Intemational Covenant on Economic, Social and Cultuml Rights, Dec. 16, 1966, G.A. Res. 2200, U.N. GAOR. 21• Sess., Supp. No.16, U.N. Doc. A/6316, 999 U.N.T.S. 3, entered inlo force Jan. 3, 1976. 4. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), Dec. 16, 1966, 21 U.N. GAOR. Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered inlojorce Mar. 23, 1976. S. Convention on the Righcs of The Child, U.N. Doc. A/RES/44/49, 28 I.L.M. 1448 (1989), entered inlo force Sept. 2, 1990. AB of this writing, the Clild Convention bas been ratified by every state in the world except Somalia, which bas m functioning government, and the United States.

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their own territory. The Committee on the Elimination of Racial Discrimination has seen to it to disabuse states of that notion when reviewing their periodic reports, 6 and the change of government in South Africa has forced some states to finally acknowledge that racial discrimination is a problem of global dimensions. The Convention addresses discrimination on the basis of "race, color, descent or national or ethnic origin. "7 Discrimination on these grounds is what lies at the foundation of many other human rights violations. This is amply evident, for example, in the report that Amnesty International issued in October at its launch of a year-long, world-wide campaign on human rights violations in the United States. 8 It is significant that not only conscious but also unconscious discrimination falls within the purview of the Convention, whose definition of "discrimination" includes measures that have the "purpose or effect" of nullifying or impairing the full enjoyment of human rights. Despite the pervasiveness of racial discrimination in the United States and elsewhere in the world, the textbooks used to teach international human rights law in the United States pay scant attention to the Race Convention. Often, the only mention of the Convention is in a list of existing human rights treaties. This inattention is why I organized this panel: to help bring attention to an important treaty and its untapped potential. 9 6. See, e.g., CERD, General Recommendation Il (Fifth session, 1972), Compilation of General Comments and General Recommendations Adopted by HUlllllJ\ Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev. 1 at 60 (1994)..

7.

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Art. 1.

8. See Amnesty International, UNITED STATES OF AMERICA: RIGHTS FOR Au. (1998). For the Amnesty International press release launching the campaign against human rights violations in the United States, see .

9. The other speakers on the panel were: Prof. Lisa Crooms of Howard Law School, speaking on the intersection of race and gender; Prof. Crooms' important work in this area is contributing to the integration of a gendered perspective into the work of all human rights treaty bodies; see, e.g., Lisa Crooms, Indivisible Rights and IntersectiOIIIJl Identities: What Do Women's Rights Have to Do With the Race Convention?, 40 How. L.J. 619 (1997); Douglas Scott, Esq., Director, International Human Rights Law Group Project on "Racial Discrimination: International Obligations and Domestic Strategies," speaking on the Law Groups' project of introducing the Convention to activists in the United States; for more information on the Initiative, contact the Law Group at (202) 822-4600; and Neil Popovic, Esq., of Heller Ehrman White & McAuliffe, and Director, U.N. Program, Eanhjustice Fund, addressing how to use the Race Convention to combat environmental racism, a subject on which he has written extensively; see, e.g., pursuing Environmental-Justice With International Human Rights and State Constitutions, 15 STAN. ENvrr.. L.J. 338 (1996); Environmental Racism in the United States and the ConllenJion on the Eliminalion of Racial Discrimination, 14 NErHERLANDS QTLY HUM. RIGHTS 277 (1996).

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My own remarks focus on one provision of the Race Convention, Article 7, which requires that states take certain steps to combat "the prejudices which lead to racial discrimination." 10 This is just one of a series of measures set forth in the Convention that are designed to eliminate racial discrimination on the basis of race, color, descent or national or ethnic origin. Toe Convention specifies that temporary special measures taken to ensure the equal enjoyment of rights, called "affirmative action" in the United States, do not constitute prohibited "discrimination" within the meaning of the Convention (Article 1(4)). The treaty directs governments not only to abolish discriminatory laws and refrain from engaging in discriminatory acts, but also to encourage mass movements to eliminate racial barriers and "discourage anything which tends to strengthen racial division" (Article 2). In addition, states are to take measures in the social, economic, cultural and other fields to ensure adequate development of racial groups in order to guarantee full and equal enjoyment of rights (Article 2(2)). In a provision recognizing the power of hate propaganda to foster prejudice, states must prohibit hate speech and outlaw organizations that promote racial hatred (Article 4). 11 In addition, states must guarantee the right to equal treatment before the law, to security of the person from violence whether at the hand of the state or a private individual, and to equality in such areas as voting, employment, housing schooling and the like (Article 5). Article 6 guarantees effective remedies against and compensation for acts of racial discrimination that violate the Convention. Finally, under Article 7, states are to combat prejudices that lead to racial discrimination, in particular, by adopting measures in the fields of "teaching, education, culture and information." We see, therefore, that the drafters of the Convention recognized that laws alone will not suffice in reducing discrimination. It is not that 10. Anicle 7 provides in full: States Patties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and infonnation, with a view to combating prejudices which lead to racial discrimination, and to promoting understanding, tolerance and friendship among nations and racial or ethnical (sic) groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Discrimination, and this Convention. 11. The hate speech provision, Anicle 4, has received perhaps the most attention among commentators. See, e.g•• MICHAEL BANTON, INTERNATIONAL ACTION AGAINST RACIAL DISCRIMINATION 202-209 (1996), (pointing out the view that Article 4 is "the key article of the Conventionw); Stephanie Farrior, Molding the Matrix: The Historical and Theoretical Foundations of International Law Concerning Hate Speech, 14 BERKELEY J. lNT'L L. 1, 48-62 (1996); Thomas David Jones, Anicle 4 of the lntemotional Convenlion on· the Elimination of aIJ Forms of Racial Discrimination and the First Amendment, 23 How. L.J. 429 (1980).

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legislation plays an unimportant role. As Dr. Martin Luther King, Jr. remarked: "It may be true that morality cannot be legislated, but behavior can be regulated. The law may not change the heart, but it can restrain the heartless." 12 Racial discrimination will not be reduced in the long run, unless "we change the heart." This is what led to the inclusion of Article 7 of the Race Convention, which requires states to take measures to combat prejudices that lead to racial discrimination, as well as measures to promote racial tolerance and understanding. During the United Nations General Assembly debate in 1963 on the draft Convention, the United Kingdom delegate, Lady Gaitskill, expressed it well when she said she doubted whether legislation alone was a sufficient response to the problem of racial discrimination: "Using legislation by itself was like cutting down a noxious weed above the ground and leaving the roots intact. " 13 Given the importance of destroying the root causes of racism, it is particularly disheartening that Article 7 bas been virtually ignored by commentators and states alike. One of the scholars involved in drafting the Convention has no section on Article 7 in his publication giving an articleby-article elaboration on the Race Convention. 14 Natan Lerner's book on the Convention barely mentions Article 7. 15 A book recently published by a member of the Committee on the Elimination of Racial Dfscrimination, Michael Banton, states the following in the section entitled "The Structure of the Convention": "In Article 1 the term 'racial discrimination' is defmed . . . . Articles 2-6 list what states parties must do in order to eliminate racial discrimination. " 16 In short, he does not seem to consider Article 7 to include any state obligations. 12. Manin Luther King, Jr., An Address Before the National Press Club, in A TEsrAMENT OF HOPB: THE l!SsENTJAL WRITINGS OF MARTIN LUTHER KING, JR. 99, 100 (James Melvin Washington, ed .• 1986).

13.

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(1996}.

14. Egon Schwelb, The International Convention on the Elimination of All Fonns of Racial Discrimination, 15 INT'L &. COMP. L.Q. 996 (1966). In addition, Theodor Meron's imponant anicle, The Meaning and ReacJa of the International Convention on the Elimination of All Fonns of Racial Discrimination, 19 A.J.I.L. 283, 297 (1985), makes but a single reference to Anicle 7 as mentioning "various educational measures.• He then points out that CERD ,.bas emphasw:d, correctly, that '[f)ar from being concerned solely with combating acts of racial discrimination after they have been perpetrated, the national policies of the State parties must also provide for preventive programmes, which seek: to remove the sources from which those acts might spring - be they subjective prejudices or objective socio-economic conditions.'" Id., citing 33 U.N. GAOR Supp. (No. 18? at 109, UN Doc. A/33/18 {1978). 15. NATAN LERNER, THE UNITED NATIONS CONVENTION ON THE EUMINATION OF ALL FORMS OF RACIAL DISCRJMINATION (2d ed. 1980). 16. (1996).

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A welcome exception to the lack of interest in Article 7 appears in the Hague Academy lectures of George Tenekides, former CERD member. Portions of his lectures on "United Nations Action against Racial Discrimination" are devoted to states parties' obligations under Article 7 of the Convention. 17 The Committee on the Elimination of Racial Discrimination has referred to Articles 4 and 7 as the pillars on which the Convention rests. 18 In doing so, the Committee noted that the Convention aims at "prevention rather than cure" by means of education, "particularly in Article 7, through teaching, information, education and acculturation, to combat prejudices which lead to racial discrimination and to promote understanding, tolerance and friendship among nations and racial or ethnic groups. " 19 Given the reservation to the substance of Article 4 entered by the United States when it acceded to the Convention,20 the obligations under Article 7 are all the more important in achieving the goals of the Convention in the United States. Just what are a state's obligation under Article 7, and what led the drafters to include them? The roots of Article 7 can be traced to Article 26 of the Universal Declaration of Human Rights, which proclaims the right to education. "Education," the Universal Declaration states, "shall be directed to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups • . . . "21 An identical clause appears in the 17- Goer_ge Tcnelcides, L'Action des Nations Unies Cantre la Discrimination Radale. in 168 Recueil de Cours, Collected Courses of the Hague Academy of International Law 350-57 and 465-66 (1980) (the latter with a section entitled "Mieux vaut prevenir que guerir"). 18- See CERD, Positive Measures Designed to Eradicate all lndtement to, or Ads of, Racial Discrimination, Implementation of the International Convention on the Elimination of All Fonns of Racial Discrimination, Article 4, U.N. Doc. CERD/2 (1985}. 19. Id. The Committee also noted the potential educative effect of Article 4 when it added: "But it is also recognized that penal legislation is educative as well as punitive." Id. 20. The United States ratified the Convention in 1994, with several reservations including the following: The Constitution and laws of the United States contain extensive protections of individual freedom of speech, expression and association. Accordingly, the United States does not accept any obligation under this Convention, in particular under Articles 4 and 7, to restrict those rights, through the adoption of legislation or any other measures, to the extent that they are protected by the Constitution and laws of the United States. 140 Cong. Rec. S7634-02 (daily ed. June 24, 1994). 21. An earlier proposal had taken the opposition approach: "Education shall be directed to contain the spirit of intolerance and hatred against other nations and against racial and religious groups everywhere." See Pentti Arajiirvi, Anicle 26, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMENTARY 408 (Asbjem Eide et al eds., 1992) [hereinafter UDHR]. This approach was changed to take the positive approach, specifying what education was to

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UNESCO Convention Against Discrimination in Education, at Article 5( 1). 22 Similarly, the Convention on the Rights of the Child provides that [T]he education of the child shall be directed to . . . the

development of respect for human rights and fundamental freedoms,

... [and] the preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin. 23

State are not only to ensure access to education. but also "as appropriate, [to] include instruction in minority languages at least at primary, and possibly at secondary levels. " 24 This is in part to help preserve minority cultures as well as to promote understanding and tolerance of diverse cultures in the society. 25 Article 7 is not directed solely at the education children receive. The Convention specifies four fields in which states parties are to adopt measures to combat prejudice and promote understanding "teaching, education, culture and information." Guidelines on implementation that explore each of these areas have been developed by CERD in collaboration with UNESCO. 26 State reporting on implementation of Article 7 has tended to focus on the education of school children.27 Given this focus, CERD has promote rather than combat. The elimination of racial discrimination is nonetheless understood be to a goal of Article 26 of the UDHR. 22. Convention Against Discrimination in Education, Mar. 23, 1976, 429 U.N.T.S. 93, entered into force May 22, 1962. 23. Convention on the Rights of !he Child, supra note S, art. 29(1). 24. Joint working paper on article 7 of the lntemational Convention on the Elimination of All Forms of Racial Discrimination, U.N. Doc. E/CN.4/Sub.2/1998/4, at 41, para. 172 (10 June 1998) [hereinafter Joint working paper]. 25. See, e.g., id. at 25-26, paras. 90-92 (noting "the right of national and ethnic minorities to education in their mother tonguesw). 26. U.N. Doc. CERD/C/70/Rev.3 (23 July 1993). See also Implementation of Article 7 of the Convention, U.N. Doc. CERD/C/69 (2 June 1980) (presenting survey of legal literature on and states parties' implementation of Article 7); Draft Guidelines Proposed by UNESCO, U.N. Doc. CERD/C/69/Add.1 (9 April 1981) (detailed guidelines for states panics to use in reporting on measures taken under Anicle 7), adopted by CERD in 1982. U.N. Doc. CERD/C/SR.570 (16 March 1982) at 201. CERD has issued a General Recommendation on the implementation of Anicle 7, but rather than specifying the types of steps states should take, it simply implores states to report on measures they have taken. CERD, General Recommendations V (151h sess. 1977), in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/Gen/1/Rev.l at 62 (1994). 21. See Joint working paper, supra note 24, at 15, paras. 42-48; "Most of the information is confined to school teaching and rarely includes other categories such as law

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emphasized the importance of the education of teachers with Article 7 in mind, so that they might be prepared to meet their proper role in educating against prejudice. CERD clearly recognized the important role teachers play in shaping opinions when it referred to the need to educate "teachers and other opinions leaders. " 28 As for the content of education, CERD has asked states to make more concerted efforts to promote intercultural and multicultural education. 29 Teaching of young people outside the classroom setting is also important. One area in which this has come up is in the review of states' periodic reports, when the Committee has asked states parties whether they have made any effort to re-educate young adults imprisoned for committing racist acts, and whether these peoples' behavior is monitored after release. 30 Despite the emphasis on education of young people, states should also be required to fulfil their obligations under the "teaching" and "education" segments of Article 7 through the education of others who hold power over individuals in society, so that they do not exercise that power in a discriminatory manner: police, judges, prosecutors, administrators and enforcers of regulations, and the like. CERD's General Recommendation on the training of law enforcement officials in the protection of human rights reflects this aspect of Article 7. 31 "[I]n the implementation of article 7," CERD notes, states parties are "to review and improve the training of law enforcement officials so that the standards of the Convention as well as the Code of Conduct for Law Enforcement Officials ( 1979) are fully implemented." States are also urged to include information on implementation of this recommendation in their periodic reports. The third area listed in Article 7 in which states are to act to promote tolerance and combat prejudice is in the field of culture. The inclusion of this category demonstrates an understanding of the impact on attitudes of such activities as theater performances, shows, concerts, cultural events, In its guidelines on sports competitions, films and the like. enforcement officials, magistrates, prosecutors, public figures, institutions, out-of-school activities, etc. Id. para. 46. 28. Id. at 12, para. 32 {referring to seminars •for education and training experts. . . aimed at the development of educational materials and training courses for teachers and other opinion leaders on eliminating prejudice and fostering tolerance"). 29. Id. at 15. In addition, CERD has indicated its support for the UN General Assembly resolution inviting UNESCO "to expedite the preparation of teaching materials and teaching aids to promote teaching, training, and educationaJ activities on racism and racial discrimination, with particular emphasis on activities at the primary and secondary levels of education. Id. at 10, para. 22. 30. See, e.g., U.N. Doc. A/48/18 (1993) (reviewing periodic report of Germany). 31. CERD, General Recommendation xm on the training of law enforcement officials in the protection of human rights (Forty-second session, 1993), in Compilation of General Comments and General Recommendation Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 67 (1994). ff

ff

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implementation, CERD has indicated that states should report on "the role of institutions or associations working to develop national culture and traditions to combat racial prejudices" and to promote intra-national and inter-cultural understanding and tolerance. 32 To improve what it has noted are rather paltry efforts to implement this section of Article 7, CERD has called for "strategies involving different channels of culture and information," including "the direct and active involvement of ministries for education, social affairs, health care [and] justice. "33 The fourth field in which states are to talce measures to combat prejudice and promote understanding is in the field of information, which has been interpreted to be the media. CERD has urged states to "encourage ... the mass media to take into account in their wide-ranging activities the provisions of article 7, including educational action and other programmes against racism. racial discrimination, xenophobia, antiSemitism and intolerance. 34 Among· other things, CERD would have states parties encourage the involvement of journalists from minority groups and communities in the mass media. In a recent report, CERD quoted a United Nations' Programme of Action targeting racism and xenophobia in which the General Assembly recommended that Member States encourage the participation of journalists and human rights advocates from minority groups and communities in the mass media. Radio and television programmes should increase the nmnber of broadcasts produced by and in cooperation with racial and cultural minority groups. Multicultural activities of the media should also be encouraged where they can contribute to the suppression of racism and xenophobia. 3s

The United States would meet its obligation under the "information" section of Article 7 through programs such as those of the Federal Connnunications Commission (FCC) that would provide minority set-asides for broadcast license ownership. In implementing this and other affirmative action programs, the FCC determined that by increasing ownership among minorities, it would be promoting viewpoint diversity. 36 However, each of U.N. Doc. CERD/cno/Rev.3 (23 July 1993) at 7. Id. at 42, para. 176. 34. Join/ worldng paper, supra note 24, at 42, para. 177. 35. Id. at 13, para•. 33. 36. In one such program, the FCC would take race and gender (as well as other factors, such as potential licensee's character, and involvement in management of the station) into account when deciding to whom to grant a broadcast license- Leonard M. Baynes, An Investigation of the Alleged aWhite Man's Burden• in the Implementation of an Ajfinnative Action Program in TelecommunicationJ Ownership, _RIITGERS L.J. _(1999). In implementing lhese affirmative action programs, the FCC observed: 32. 33.

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its affirmative action programs has been repealed, overturned, or held in abeyance, in large part because the Supreme Court heightened the standard of review necessary to determine these programs' constitutionality. 37 As stated earlier, the United States entered a reservation to the substance of Article 4, the "hate speech" provision, when it acceded to the Race Convention. One of the main arguments put forward in the United States for opposing the regulation of hate speech is that the response should not be penalization of "bad" speech but instead, should be "more speech" in the so-called marketplace of ideas. Without access to that marketplace, however, one cannot counter with more speech. 38 To fulfil its obligations under the Convention, the United States has a particular obligation to ensure access to that marketplace through measures adopted under Article 7 so that speech targeting racial prejudice is available in the media. I would like to end with a brief recommendation to the government of the United States. Having ratified the Race Convention, the United States should be sure not to ignore its obligations under Article 7, but instead should implement it by developing, as recoonnended by CERD, "an action-oriented national plan" on education "with an emphasis on racial discrimination and the provisions of Article 7. "39 The national plan should require the adoption of curricula in the classroom that educate against racial prejudice; make similar education part of the training of teachers "and other opinion leaders," and include among those opinion leaders the media, given the powerful role the media play in shaping perspectives and hence opinions in today's society. The United States should also be sure to include in its first report to CERD those measures it has taken to implement its obligations under Article 7, as well as those measures it plans to take. Given the United States reservations to Article 4 on hate speech, a failure to implement the other pillar of the Convention, Article 7, could render United States ratification of the treaty nearly meaningless.

Full minority panicipation in the ownership and management of broadcast facilities results in more diverse selection of programming. In addition. an increase in ownership by minorities will inevitably enhance the diversity of control of a limited resource, the spectrum. And of course, we have long been committed to the concept of diversity of control because "diversification ... is a public good in a free society, and is additionally desirable where a governmem licensing system limits access by the public to the use of radio and television facilities. Statemenl a/ Policy on Minority Ownership of Broadcast Facilities, 68 F.C.C. 2d 979 (1978), cited in Baynes, id. 37. See Metro Broadcasting v. FCC, 497 U.S. 564, 565; Adarand v. Pena, 515 U.S. 200 (1995). 38. 39.

For further analysis of this concept, ree Baynes, supra note 36. Joifll working paper, supra note 24, at 41, para. 171.

[18] USING CULTURE TO ACHIEVE EQUALITY Ingrid WESTENDORP 1.

INTRODUCTION

Although the extent and seriousness may vary, worldwide women face discrimination because of their gender irrespective of whether they live in developed or developing States. 1 Almost everywhere this form of discrimination and lack of equality is characterized by a huge contrast between the formal, legal situation and the actual situation in practice. International, regional and national laws and regulations have been adopted and on paper women seem to have become men's equals. Authorities think that their work is done and they leave it to the individual woman to realize the rights that she is entitled to. The crux of the matter is, however, that the barrier that stands between theory and practice is to be found in people's perception; the existing image of how women and men should behave in society, which roles they should play and which characteristics befit either gender. As long as this barrier has not been demolished, women will fight an uphill battle. They are caught between their own and their family's/ community's prejudices and expectations on the one hand and their human needs, entitlements, ambitions and capacities on the other. That is why Article 5 of the Women's Convention plays a vital part. As long as harmful traditions and stereotyped gender patterns are not replaced by new customs and traditions that are based on the idea of gender equality, women's human rights will remain a dead letter.

The term gender is understood as a set of supposed differences society uses in order to distinguish between women and men. These supposed differences find their basis in the fact that certain characteristics, roles, and abilities are ascribed to either of the sexes as if they were general, inherent, and unchangeable. It is remarkable to notice that irrespective of cultural differences or geographic locations, similar patterns and stereotypical ideas about men and women have developed all over the world. Also see RIKKI HOLTMAAT and )ONNEKE NABER, Women's Human Rights and Culture: From Deadlock to Dialogue, Intersentia, Antwerp, 201 !, p. 31.

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However, culture, tradition and custom should not be regarded as negative powers that by definition victimize girls and women. Being part of a group's culture may give a sense of safety and belonging, while some customs may be to women's advantage and should be preserved. Furthermore, while the current culture may appear to be fixed and uncompromising, in fact culture is by nature flexible and dynamic and can and will change over time due to all kinds of influences. Individual women as well as national and international women's organizations and organs such as CEDAW that are bent on achieving equality, should make use of this natural progress to turn culture and custom in such a way that harmful traditions are replaced by beneficial practices. That is why the central question of this Chapter is how culture could be used as an instrument to achieve equality for women and who should be the actors. First, the content and unique meaning of Article 5 will be discussed by having a look at the travaux preparatoires and the connection with Article 2(f) of the Convention. In Section 3 the implementation of Article 5 on the national level will be explored. CEDAW plays an important role in advising States on the measures that could be taken. Recent advice given in Concluding Observations on State reports will be examined and analyzed. In Section 4 the different sides to culture will be central. First the reasons why culture may form a barrier to the realization of women's human rights will be examined and next suggestions will be given for further measures that may bend culture in the direction of gender equality. The last sub-section will go into the actors that should be recruited to bring this change of direction about. The Chapter will end with a brief conclusion.

2.

CONTENT AND MEANING OF ARTICLE 5: INTRODUCTION

The idea that prejudice and harmful practices need to be eradicated in order to achieve equality between men and women was already included in the Declaration on the Elimination of Discrimination against Women, drafted by the UN Commission on the Status of Women and adopted by the UN General Assembly in 1967. 2 The text of Article 3 of this Declaration reads: 'All appropriate measures shall be taken to educate public opinion and to direct national aspirations towards the eradication of prejudice and the abolition of customary and all other practices which are based on the idea of the inferiority of women.' From the travaux preparatoires of the Women's Convention it becomes clear that the first paragraph of Article 5 of the Women's Convention was met with

UN doc. A/RES/2263, XXII, 7 November 1967.

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much assent. In the first draft, which was proposed by the Philippines,3 already the basis was laid for the final text. The original proposal read: 'State parties undertake to adopt immediate, effective appropriate measures, particularly in the fields of teaching, education, culture and information, with a view to educating public opinion and to directing national aspirations towards the eradication of prejudice and the abolition of customary and all other practices which are based on the idea of inferiority of women.' More discussion was needed as regards the second paragraph of Article 5 since some States wanted to stress the social value of motherhood, while others felt that this would maintain women and men in complementary roles which might work to women's disadvantage because of their association with caregiving work. Finally, consensus could be achieved over the text that the upbringing and development of children is the responsibility of both fathers and mothers. 4 Article 5 does not stand on its own; it is a logical sequence of Article 2(f) of the Women's Convention in which it is stipulated that equality of women should be achieved both de iure and de facto. 5 In indicating that de facto equality must be one of the two goals and that to achieve this goal all appropriate measures have to be taken, Article 2(f) forms the basis for the legal and extra-legal measures that must be taken in order to realize the obligations ensuing from Article 5. 6 That is why State parties that have made a reservation to Article 5, but not to Article 2(f) are not exempted from abolishing discriminatory cultural rules, for if they do not tackle customs that have a negative impact on women's equality, they will violate their obligation to achieve de facto equality. Up till now, CEDAW has not yet adopted a specific General Recommendation on Article 5. The composition of the Committee, with members from different cultural backgrounds, makes the subject matter of Article 5 a delicate topic about which it may be difficult to reach consensus. Article 5 and its importance UN doc. E/CN.61573 of 6 November 1973. LARS ADAM REHOF, Guide to the Trav~ux Preparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women, Martinus Nijhoff Publishers, Dordrecht, 1993, pp. 77-88. The exact text of Article 2(f) reads: 'State parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: [... ] (f) To take aIJ appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women'. This is also the opinion of Rebecca Cook who states that Articles 2(f) and 5 (a) combined 'strongly reinforce the commitment to eliminate all forms of discrimination, since many pervasive forms of discrimination against women rest not on law as such but on legally tolerated customs and practices of national institutions'. She explicitly mentions personal law systems and religious institutions. REBECCA COOK, 'State Accountability Under the Convention on the Elimination of All Forms of Discrimination Against Women', in: Rebecca ). Cook (ed.), Human Rights of,Vomen, National and International Perspectives, University of Pennsylvania Press, Philadelphia, 1994, pp. 239-240. lntersentia

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are mentioned, however, in several General Recommendations and the last few years CEDAW pays explicit attention to Article 5 in the majority of the Concluding Observations on individual State reports. 7 Another human rights provision that explicitly calls upon States to interfere in cultural patterns, albeit under particular and restricted circumstances, is Article 24(3) of the Convention of the Rights of the Child. 8 In the relevant paragraph it is stipulated that: 'State parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children'. Since virtually all States in the world are party to this Convention, 9 and no explicit reservations have been made as to this specific paragraph of Article 24, 10 it may be assumed that there is a worldwide consensus that under certain conditions it is acceptable to forego tradition, as part of culture, in the interest of a person's human rights. From the travaux preparatoires it becomes clear that 'health' is to be interpreted rather broadly. It would include, for instance, the traditional practice of son preference. 11 The phrase 'all effective and appropriate measures' to achieve this goal seems to be more focused on a change of mentality than on justiciable rules. 12 An important soft law provision giving precedence to human rights to cultural patterns in case of a possible clash may be found in Article 4 of the Declaration on the Elimination of Violence against Women, which reads in part: 'States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination.' 13

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See sub-section 3.1 of this Chapter. Although the CRC has not (yet) adopted a specific General Comment on Article 24, this provision is one of the subjects under scrutiny in General Comment No. 4, Adolescent health and development in the context of the Convention on the Rights of the Child, UN doc. CRC/ GC/2003/4, 1 July 2003. Particularly relevant is para. 24 of this document which reads: In light of Articles 3, 6, 12, 19 and 24(3) of the Convention, State parties should take all effective measures to eliminate all acts and activities which threaten the right to life of adolescents, including honour killings. The Committee strongly urges State parties to develop and implement awareness-raising campaign, education programmes and legislation aimed at changing prevailing attitudes, and address gender roles and stereotypes that contribute to harmful traditional practices. [... ]'. In October 2011193 States had ratified the Convention on the Rights of the Child. Only two States have only signed and not ratified the Convention. These are the United States of America and Somalia. See Status of ratification of the Convention on the Rights of the Child at www. treaties. un .erg/Pages/View Details.aspx?src=TREATY&mtdsg_no= IV-I I&chapter= 4&lang=en, consulted on 13 October 2011. See overview of Declarations and reservations to the Convention on the Rights of the Child, www.treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-ll&chapter=4& lang=en, consulted on 13 October 2011. SHARON DETRICK, A Commentary on the United Nations Convention on the Rights of the Child, Kluwer Law International, The Hague, 1999, pp. 414-419. /AN WILLEMS, Wie zal de Opvoeders Opvoeden? Kindermishandeling en het Recht van het Kind op Persoonswording, T.M.C. Asser Press, The Hague, 1998, p. 950. UN doc. A/RES/48/104, Declaration on the Elimination of Violence against Women, 20 December 1993. lntersentia

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More general human rights prov1S1ons may also entail an obligation to dispose of harmful traditions should these prevent the realization of a person's human rights. The Human Rights Committee for one interprets Article 3 ICCPR on equality rights between women and men in this sense. In General Comment No. 28 the HRC points out that the inequality of women is embedded in tradition, history, and culture including religion. States parties have the obligation to ensure that tradition, and religious or cultural rules are not used as justifications for violations of women's right to equality before the law or of the equal enjoyment of the rights contained in the Covenant. States parties should specifically mention in their reports to the Committee which measures they have taken to eradicate such practices. 14 Thus the HRC clearly puts the universal human right principle of equality as contained in Article 3 of the ICCPR above cultural prescriptions. This seems a logical choice since the object and purpose of the provision is to achieve de iure and de facto equality and the latter is impossible if cultural patterns are maintained that refer women to a subordinate position in society and that deny them the full realization of the rights they are entitled to under the Covenant. The CESCR is not as explicit in its General Comment No. 16 on Article 3 of the ICESCR. Although it is admitted that women are often denied equal enjoyment of economic, social and cultural rights because of tradition and custom, and it is stressed that the mandate of Article 3 is to achieve de facto equality in addition to de iure equality, there is no clear requirement to eradicate harmful traditional practices. That abolition of such practices may be warranted may be inferred from the statement that in order to achieve substantive equality, States parties are expected to concern themselves with the effects of laws, policies, and practices, and to ensure that they do not uphold, but rather alleviate, the inherent disadvantage that particular groups experience. 15 In conclusion it may be said that Article 5 of the Women's Convention, albeit the most explicit and comprehensive, is not the only legally binding treaty provision that demands the abolition of cultural patterns if these inhibit the enjoyment of universal human rights and in particular the right to equality.

3.

IMPLEMENTATION ON THE DOMESTIC LEVEL

In order to implement Article 5 on the domestic level States are under the obligation to take 'all appropriate measures'. Obviously, States are already under an obligation to take legal measures to promote and guarantee equality between 14

15

CCPR General Comment No. 28, Equality of Rights between Men and Women (art. 3), 2000, para. 5. CESCR General Comment No. 16, Article 3: the equal right of men and women to the enjoyment of all economic, social and cultural rights, 13 May 2005, paras. 5-8.

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men and women since this ensues from Article 2, but it is rather vague which other, extra-legal measures have to be taken especially since these should be measures that are appropriate to modify social and cultural patterns of conduct. From the draft versions of the Article it appears that the drafters were thinking of public education and information. In the next sub-section it will be explored which kind of measures CEDAW advises States parties to take. 16

3.1. APPROPRIATE MEASURES ACCORDING TO CEDAW Which 'appropriate' measures are recommended by CEDAW may be gleaned from examining the Committee's Concluding Observations.17 In many comments, Article S is discussed under the heading of 'stereotypes and practices that a·re harmful for women'. It is clear that CEDAW is acutely aware of the fact that the fulfilment of Article S is crucial for the realization of many if not all substantive human rights that are contained in the Women's Convention since the necessity to eradication harmful practices is also frequently discussed in sections that concern the right to education (not only as regards girls' and women's access to education, 18 but also in respect of the importance to eradicate educational segregation that keeps women in traditional fields of education and vocational training); 19 the right to employment (in particular the horizontal and vertical segregation of the labour market that finds women in low paid and parttime jobs and the omnipresent and persistent gender wage-gap between men and women); 20 political participation, including decision-making on the local level; 21

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18 19

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For the purpose of this section Concluding Observations by CEDAW between 2006 and 2011 have been studied. The author has chosen a mix of States in all continents of the world, with different cultures and different stages of development: Albania (2010), Argentina (2010), Australia (2010), Bangladesh (2011), Belarus (2011), Botswana (2010), Burkina Faso (2010), China (2006), Cuba (2006), Denmark (2006), Egypt (2010), Fiji (2010), Germany (2009), India (2007), Indonesia (2007), Israel (2011), Kenya (2011), Liechtenstein (2011), Malawi (2010), Mexico (2006), The Netherlands (2010), Panama (2010), Papua New Guinea (2010), Russian Federation (2010), Rwanda (2009), South Africa (2011), Sri Lanka (2011), Sweden (2008), Tunisia (2010), Turkey (2010), Uganda (2010), Ukraine (2010), United Arab Emirates (2010), Uzbekistan (2010). Since 2008 the Concluding Observations are neatly arranged which makes it easier to find the Committee's comments and advice in respect of combating traditional gender roles. For instance as regards Albania, Burkina Faso, Egypt, Kenya, and Uganda. For instance with regard to Argentina, Belarus, Germany, Liechtenstein, The Netherlands, Russian Federation, and Sri Lanka. For instance in the Concluding Observations on Australia, Belarus, Denmark, Germany, Israel, Liechtenstein, The Netherlands, Russian Federation, Sri Lanka, and Sweden. In Liechtenstein women are underrepresented in all political organs. None of the current mayors is female. The State party's explanation for this fact is that women are often too burdened with professional and family duties to take part in political life. UN doc. CEDAW/C/LIE/CO/4, Concluding Observations, Liechtenstein, 5 April 2011, paras. 28 and 29. Also see the comments on Belarus, Russian Federation, and Sri Lanka. Intersentia

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rights in respect of marriage and family life; 22 and women's right to land and property, in particular traditional practices that deny women ownership ofland and refuse them a part of the inheritance. 23 Furthermore, in many comments CEDAW points out the connection between stereotypes and traditional gender roles and the occurrence of violence against women, in particular domestic violence. 24 In many cases, CEDAW expresses its concern 'about the persistence of patriarchal attitudes and deep-rooted stereotypes concerning women's roles and responsibilities that discriminate against women and perpetuate their subordination within the family and society. It notes that such discriminatory attitudes and stereotypes constitute serious obstacles to women's enjoyment of their human rights and the fulfilment of the rights enshrined in the convention.' 25 Usually, CEDAW will subsequently call upon the State party to adopt a comprehensive plan or strategy that is in conformity with the obligations under Articles 2(f) and S(a). 26 Occasionally, it is explicitly mentioned that such an approach encompasses the abolition or modification of discriminatory legislation or adoption of new legislation explicitly giving equal right to

22

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Harmful practices that discriminate against women both during marriage and at the dissolution of marriage exist in abundance. Polygamy, bride price, early marriages, forced and arranged marriages all undermine women's human rights. Furthermore, men are still regarded as the breadwinners and heads of the family, while women are expected to stay at home to do the household chores and raise the children which prevents them to develop and use all their capacities. See e.g. the comments on Indonesia, Papua New Guinea, and the Russian Federation. In Israel, traditional religious laws govern all marriages and divorces. For the Jewish part of the population (which is everyone of Jewish descent both religious and not religious) the rule that men have the unilateral power to divorce (grant the 'get') is applied without exception. UN doc. CEDAW/C/ISR/CO/5, Concluding Observations, Israel, 5 April 2011, paras. 48 and 49. See for example the comments on Bangladesh, Botswana, Burkina Faso, Fiji, India, Kenya, Malawi, Papua New Guinea, South Africa, Sri Lanka and Uganda. A very interesting example is that CEDAW emphasizes that one of the causes of witch-hunting in India would be control over land by men. UN doc. CEDAW/C/IND/CO/3, Concluding Comments, India, 2 February 2007, para. 27. Concern that patriarchal attitudes and deep-rooted stereotypes form a root cause for the persistence of violence against women in general and domestic violence in particular is for instance expre§sed by CEDAW in its Concluding Observations on Cuba, Egypt, Fiji, Kenya, Malawi, Mexico, Russian Federation, and Uzbekistan. This particular quote has been taken from the Concluding Observations on Botswana, UN doc. CEDAW/C/BOT/CO/3, Concluding Observations, Botswana, 26 March 2010, para, 23 .. E.g.: UN doc. CEDAW/C/ARG/CO/6, Concluding Observations, Argentina, 16 August 2010, para. 18; UN doc. CEDAW/C/BOT/CO/3, Concluding Observations, Botswana, 26 March 2010, para. 24; UN doc. CEDAW/C/BFA/CO/6, Concluding Observations, Burkina Faso, 5 November 2010, para. 20; UN doc. CEDAW/C/CUB/CO/6, Concluding Observations, Cuba, 25 August 2006, para. 18; UN doc. CEDAW/C/KEN/CO/7, Concluding Observation, Kenya, 5 April 2011, para. 18; UN doc. CEDAW/C/MWI/CO/6, Concluding Observations, Malawi, 5 February 2010, para. 20; UN doc. CEDAW/C/NLD/CO/5, Concluding Observations, The Netherlands, 5 February 2010, para. 25.

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women.27 In a few cases the Committee has recommended multi-cultural societies to intervene and change the customary laws and/or personal laws for certain societal groups and bring them in conformity with the obligations under the Convention. This was for instance done in the case of India even though the State party has made a reservation to Article 5. 28 It is clear, however, that the main legal obligation under Article 5 pertains to the taking of extra-legal measures that target the existing inequality in practice. In conformity with the ideas that were already expressed during the drafting of the provision, CEDAW advises States parties to focus on teaching, both formal and informal education, and public information with the purpose of bringing about a change in mentality by creating awareness of, and developing understanding for, the equality between women and men and the need to eradicate gender stereotypes. According to the Committee, these educational and awareness-raising programmes should target a broad public covering children and adults of both sexes. In some cases, States parties are recommended to give specific training to teachers, the judiciary, the police, and local authorities including chiefs and other traditional or religious community leaders. 29 States may also be advised to conduct such programmes in collaboration with Civil Society Organizations (CSOs). 30 Sometimes, the State party is urged to revise the contents of textbooks for school children with the purpose of eradicating traditional role patterns and stereotypical images. 31

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E.g.: UN doc. CEDAW/C/EGY/CO/7, Concluding Observations, Egypt, 5 February 2010, para. 22; UN doc. CEDAW/C/MWI/CO/6, Concluding Observations, Malawi, 5 February 2010, para. 20; UN doc. CEDAW/C/UGA/CO/7, Concluding Observations, Uganda, 5 November 2010, para. 20; UN doc. CEDAW/C/UZB/CO/4, Concluding Observations, Uzbekistan, 26 January 2010, para. 20. 'The Committee urges the State party to withdraw its reservations to Articles S(a) and 16(1) and to proactively initiate and encourage debate within the relevant communities on gender equality and the human rights of women and in particular work with and support women's groups as members of these communities so as to [... ] b) review and reform personal laws of different ethnic and religious groups to ensure de iure gender equality and compliance with the Convention.', UN doc. CEDAW/C/IND/CO/3, Concluding Comments, India, 2 February 2007, para. 11. E.g.: UN doc. CEDAW/C/ALB/CO/3, Concluding Observations, Albania, 16 September 2010, para. 25; UN doc. CEDAW/C/KEN/CO/7, Concluding Observation, Kenya, 5 April 2011, para. 18(a); UN doc. CEDAW/C/MWI/CO/6, Concluding Observations, Malawi, 5 February 2010, para. 2; UN doc. CEDAW/C/PNG/CO/3, Concluding Observations, Papua New Guinea, 30 July 2010, para. 24; UN doc. CEDAW/C/RWA/CO/6*, Concluding Observations, Rwanda, 8 September 2009, para. 22. E.g. in the case of Albania, Botswana, Egypt, Fiji, Liechtenstein, Papua New Guinea, Russian Federation, South Africa, Sri Lanka, Turkey, and Uganda. E.g.: UN doc. CEDAW/C/CHN/CO/6, Concluding Comments, China, 25 August 2006, para. 18; UN doc. CEDAW/C/ISR/CO/5, Concluding Observations Israel, 5 April 2011, para. 34; UN doc. CEDAW/C/UKR/CO/7, Concluding Observations, Ukraine, 28 January 2010, para. 24. Intersentia

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Much emphasis is put on the role of the media. States parties are requested to work with the media, 32 influence the media, 33 or use the media themselves 34 to abolish stereotypes and/or degrading images of women and instead portray girls and women in a positive, non-stereotypical, and non-discriminatory way. 35 It is interesting to note that CEDAW only sporadically comments on the division of care-taking work between women and men. Some States parties are advised to enhance the role of fathers by adopting legislation and promoting the possibilities of taking parental leave for fathers and getting them more involved in the raising of their children. 36

32

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E.g. UN doc. CEDAW/C/BGD/CO/7, Concluding Observations, Bangladesh, 22 March 2011,

para. 18(b); UN doc. CEDAW/C/BLR/CO/7, Concluding Observations, Belarus, 6 April 2011, para. 18; UN doc. CEDAW/C/BOT/CO/3, Concluding Observations, Botswana, 26 March 2010, para. 24; UN doc. CEDAW/C/EGY/CO/7, Concluding Observations, Egypt, 5 February 2010, para. 22; UN doc. CEDAW/C/PJI/CO/4, Concluding Observations, Fiji, 16 September 2010, para. 21; UN doc. CEDAW/C/KEN/CO/7, Concluding Observation, Kenya, 5 April 20ll, para. lS(c); UN doc. CEDAW/C/LIE/CO/4, Concluding Observations, Liechtenstein, 5 April 2011, para. 19(b). For instance in the case of Albania: While respecting the independence of the media and the right to freedom of expression, the media should be encouraged to project positive nonstereotypes images of women and of their equal status and role in the private and public spheres. UN doc. CEDAW/C/ALB/CO/3, Concluding Observations, Albania, 16 September 2010, para. 25; Or with regard to Sweden: The Committee calls upon the State party to strengthen its strategies to combat sexualisation of the public sphere and to take proactive measures to ensure that media production and coverage are non-discriminatory and increase awareness of these issues among media proprietors and other relevant actors in the industry. UN doc. CEDAW/C/SWE/CO/7, Concluding Observations, Sweden, 8 April 2008, para. 23. E.g.: UN doc. CEDAW/C/CHN/CO/6, Concluding Comments, China, 25 August 2006, para. 18; UN doc. CEDAW/C/CUB/CO/6, Concluding Comments, Cuba, 25 August 2006, para. 18. E.g.: UN doc. CEDAW/C/BOT/CO/3, Concluding Observations, Botswana, 26 March 2010, para. 24; UN doc. CEDAW/C/KEN/CO/7, Concluding Observation, Kenya, 5 April 2011, para. 18(c); UN doc. CEDAW/C/PNG/CO/3, Concluding Observations, Papua New Guinea, 30 July 2010, para. 26; UN doc. CEDAW/C/USR/CO/7, Concluding Observations, Russian Federation, 16 August 2010, para. 21; UN doc. CEDAW/C/ZAF/CO/4, Concluding Observations, South Africa, 5 April 2011, para. 21. E.g.: In the case of Albania: The Committee recommends'[ ... ] promotion of sharing domestic and family responsibilities between women and men, inter alia through awareness-raising and education initiatives for both women and men on the adequate sharing of care of children and other dependent family members and domestic tasks.', UN doc. CEDAW/C/ALB/CO/3, Concluding Observations, Albania, 16 September 2010, para. 33; with regard to Sweden: 'The Committee recommends that the State party continue its efforts to ensure reconciliation of family and professional responsibilities and for the promotion of equal sharing of domestic and family tasks between women and men.', UN doc. CEDAW/C/SWE/CO/7, Concluding Observations, Sweden, 8 April 2008, para. 27; and on Tunisia: 'The Committee encourages the State party to step up its efforts to assist women and men in striking a balance between family and employment responsibilities through, inter alia, further awareness-raising and education initiatives for both women and men on adequate sharing of care of children and domestic tasks, as well as by providing men with the possibility and incentives, to take up part-time employment.', UN doc. CEDAW/C/TUN/CO/6, Concluding Observations, Tunisia, 5 November 2010, para. 45.

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Particularly with regard to developing States, CEDAW occasionally takes the stance that culture should be treated as a dynamic concept. States parties should not hide behind cultural justifications treating tradition as fixed but instead they should move on, discarding or modifying practices that stand in the way of the realization of women's human rights. 37 States are strongly advised to enlist nonState actors such as CSOs, local authorities, and religious leaders to bring about such a change in culture.

3.2. SOME COMMENTS ON CEDAW'S CONCLUDING OBSERVATIONS From the analysis of CEDAW's Concluding Observations both positive and negative aspects come to mind. To this author it seems to be highly positive that attention to stereotypes and harmful practices is paid in a separate section of the Concluding Observations. This emphasizes the importance of Article 5 and stresses the legal obligation that is included in the provision. It is therefore a pity that the Committee is not consistent in devoting a separate section to Article 5. For instance, in the Concluding Observations concerning Australia (2010) and Israel (2011) such a section is lacking while at the same time it becomes obvious from the comments in sections on violence against women and on employment that stereotypes and traditional role patterns are pervasive in both countries and cause violations of women's human rights and in particular their right to equality. While it is commendable that the Committee urges States to regard culture as a dynamic concept that is subject to change, it is difficult to understand why such an approach is only impressed upon a few developing States instead of on all States parties. Sadly not one State in the world can boast a culture that is based on gender equality which implies that culture needs to be changed everywhere. CEDAW's emphasis on developing States may give cause to friction and give the impression that harmful practices are only to be found in non-Western States. In fact, harmful stereotypes are also so ingrained in Western States that while at the

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On Botswana: 'The Committee urges the SP to view culture as a dynamic dimension of the country's life and social fabric, subject to many influences over time and therefore subject to change.', UN doc. CEDAW/C/BOT/CO/3, Concluding Observations, Botswana, 26 March 2010, para. 24; on Malawi: 'The Committee urges the State party to view culture as a dynamic dimension of the country's life and social fabric, subject to many influences over time and therefore to change', UN doc. CEDAW/C/MWI/CO/6, Concluding Observations, Malawi, 5 February 2010, para. 21; and on Papua New Guinea: 'The Committee invites the SP to view culture and tradition as dynamic aspects of the country's life and social fabric and therefore as subject to change.', UN doc. CEDAW/C/PNG/CO/3, Concluding Observations, Papua New Guinea, 30 July 2010, para. 26. Intersentia

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surface it may seem as if women are equal to men, the root causes of inequality between the sexes have not yet been adequately tackled let alone eradicated. 38 It is a good thing that CEDAW takes a holistic approach and requests States parties to adopt a comprehensive plan or strategy that is in conformity with Articles 5 and 2(f). While it is clear that States have do draw up such strategies themselves since they know best which strategy is suitable in view of the particular national and cultural context, it is still a pity that the Committee remains unclear about the contents of such a plan or strategy and does not give any concrete suggestions. CEDAW calls upon States to come up with innovative measures to change attitudes, but fails to think beyond the beaten track of legislation, education and information. The focus on the media seems justified. Television, radio, newspapers and internet to a great extent influence the way in which people perceive the world. The media can transmit traditional gender roles, but may also introduce new societal patterns and depict women and men in non-traditional ways. In addition to more 'modern' methods of information spreading, people's view of the world is also influenced by (traditional) stories, 39 plays, dances and songs. 40 States should not only be mindful of stereotyped television programmes, advertisements and commercials, 41 but also of the power of more traditional ways to convey and imprint gender stereotypical images.

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If the Special Rapporteur on violence against women, Radhika Coomaraswamy was right, and the main cause of gender-based violence is the unequal power relation between men ~nd women, not much has changed in the Western world if the pervasiveness of violence against women, including domestic violence, is taken into consideration. See UN doc. El CN.4/1995/42, Preliminary report by the Special Rapporteur on violence against women, its causes and consequences, 22 November 1994, paras. 49-57. In addition, the huge income gap between men and women, the segregation in the labour market, and the large amount of part-time working mothers, pay witness to the unequal socio-economic position of women in the developed world. For instance Hindu epics like the Ramayana about Lord Rama and his wife Sita, and the story of the God Siva and his consort Sati, both depict the ideal woman as chaste, obedient and selfsacrificing - even to the extent that she is prepared to self-immolate in order to save the honour of her husband - while the ideal man is presented as a warrior. See CouRTNEY W. HOWLAND, 'The Challenge of Religious fundamentalism to the Liberty and Equality Rights of Women: An Analysis Under the United Nations Charter', in: Susan Deller Ross {ed.), Women's Human Rights: The International and Comparative Law Casebook, University of Pennsylvania Press, Philadelphia, 2008, pp. i24-125. While traditional songs may surely perpetuate stereotypical behaviour, it is perhaps more worrisome that in some contemporary pop music such as hip hop and rap, denigrating terms for girls and women are used and violence against women is accepted or sometimes even glorified. In August 2011, one of my students, Benedicta Deogratias, conducted a short empirical research in respect of gender stereotyping in TV commercials. For a period of three days she watched all commercials that were shown between 20.30 and 22.30 hrs on one specific channel in the Netherlands. The outcome shows that more than 75% of the commercials contained stereotypical elements.

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The fact that only sporadically attention is drawn to the role of fathers seems to be a missed chance. Only when household responsibilities including raising children are equally shared between women and men, and the perception of such tasks as inferior and women's work is abolished, will women get the chance to fully develop themselves and enjoy their human rights.

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THE TWO FACES OF CULTURE 42

Culture, in the sense of a comprehensive set of rules of acceptable societal behaviour, plays an important role in people's lives. The culture of the group in which a person is born will not only have a huge impact on the possibilities and chances that a person will get to develop her or himself, culture also gives people a sense of belonging, security, and of identity. 43 In this section, first the reasons are studied why culture may be a barrier that keeps women from realizing their right to equality. Next, the makeability of culture will be examined and the possibilities to introduce new customs and practices that are based on the idea of gender equality. In the last sub-section attention will be paid to the actors that may play a role in bending current unequal gender patterns in a new direction.

4.1. CULTURE AS A BARRIER For many girls and women all over the world customs and traditional gender stereotypes form a barrier between their legal right to equality and the chances that they get to bring this right into practice. Their choices in life are limited because their families and communities already make certain choices for them in line with society's culturally determined expectations of women's role in the community. Girls' parents may consciously or unconsciously show that they favour their brothers because it has become custom that sons will take (financially) care of their parents in old age, or religious rules demand that only sons perform burial or cremation rituals, or simply because they have the feeling 42

43

The term culture is very broad. In the Oxford Dictionary it is defined as: the arts and other manifestations of human intellectual achievement, but also as the ideas, customs and social behaviour of a particular people or society. Afkhami distinguishes 'the best in the arts, manners, literature, music, philosophy, science and all the other refined attributes that a civilization has achieved' and 'the concepts, habits, skills, instruments, institutions, etc. of a given people in a given period'. MAHNAZ AFKHAMI, 'Cultural Relativism and Women's Human Rights', in: Kelly D. Askin and Dorean M. Koenig (eds), Women and International Human Rights Law, Vol. 2, 1998, Transnational Publishers Inc., Ardsley, New York, p. 482. RIKKI H0LTMAAT and )0NNEKE NABER, 2011, p. 33. Also ABDULLAH! AHMED AN-NA'JM and JEFFREY HAM M0ND, 'Cultural Transformation and Human Rights in African Societies', in: Abdullahi A. An-Na'im (ed.), Cultural Transformation and Human Rights in Africa, Zed Books, London, 2002, p. 21. 0

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that boys are worth more than girls because they are the future bread winners and leaders. Son preference may be expressed by better food, better health care and better schooling for boys. 44 Parents may also expect different behaviour from son~ and daughters when they are children. Many girls are brought up with the idea that they should be modest, polite and obedient, 45 while boys may be encouraged to assert themselves and take command, and it may be tolerated that they show boisterous behaviour in games and sports. Both girls and boys are prompted to play gender appropriate games or play with gender appropriate toys, training them for their future roles in society.46 When girls approach adolescence, their sexuality may be viewed as potentially dangerous. In many societies girls are supposed to remain virgins till they marry, and married women must be chaste because the family's honour depends on their behaviour. 47 Boys' and men's sexuality is not seen as a problem, but they may have the task to control the sexuality of their female relatives. 48 This gender stereotypical upbringing diminishes girls' equal chances to access education, or predestines them for certain types of vocational training. Furthermore, girls grow up with the notion that if they want a family, it will be their task to take care of the household and raise the children, and if they also wish to pursue a career, it is their problem as 'working' mothers to find a solution how to combine their manifold tasks. Obviously, boys are also steered in a gender-specific direction. From an early age on, it is imprinted on them that they are to be the future breadwinners of their families. They have to enter the public sphere and make a career and it is not regarded as an acceptable option for them to stay at home to raise the children. 44

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For the effect of son preference on girls and women see e.g. CHRISTINA M. CERNA and JENNIFER C. WALLACE, 'Women and Culture', in: Kelly D. Askin and Dorean M. Koenig (eds.), Women and International Human Rights Law, Vol. I, Transnational Publishers Inc., Ardsley, New York, 1999, pp. 630-634. Howland sees the obedience rule as a fundamental religious rule that has a severe impact on women's access to education and employment. COURTNEY W. HOWLAND, 2008, pp. 117-118. In Western countries it is striking to see that even the toy industry may apply sex segregation in respect of advertising their toys. Boys are encouraged to play with building blocks, cars and airplanes. For girls there are dolls, miniature kitchens, and pink vacuum cleaners and if they should have any ambition in the direction of building with bricks, special boxes for girls are provided - some of them even with pink bricks - around themes like playing house or taking care of animals. In some cultures the fear that a girl will lose her virginity and thus will become unmarriageable, will lead to the practice of early marriage with detrimental effects on a girl's right to education, employment and health due to early pregnancies. See e.g. CHRISTINA M. CERNA and JENNIFER C. WALLACE, 1999, p. 636. The burden is particularly heavy on the shoulders of under-age brothers or other male relatives who may be coerced into honour killings. KATHRYN CHRISTINE ARNOLD, 'Are the Perpetrators of Honor Killings Getting Away With Murder? Article 340 of the Jordanian Penal Code Analyzed Under the Convention on the Elimination of All Forms of Discrimination Against Women', American University International Law Ret'iew Vol. 16, no. 5, 2001, p. 1347.

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Men are supposed to be suited for all kinds of professions that are thought to be unfitting or less suitable for women. Both women and men are prejudiced as regards which kind of work is 'female' or 'masculine' and on average, masculine work is valued more than female work. 49 As a result, work that is regarded as female is not as well paid or sometimes not paid at all, 50 and women will not become economically independent, but instead they will remain dependent on their fathers, partners or on welfare their whole life. 51 Similar patterns can be found in all States of the world in all kinds of communities, irrespective of their cultural or religious backgrounds. Obviously, there are gradations and differences in the ways in which women are discriminated against, but the patriarchal roots and stereotypes basically are the same and their effect is that stereotypical ideas are perpetuated irrespective of the existence of equal rights on paper. For people who belong to a certain community, it may be very difficult to break with customs and traditions and to behave in a way that is different from what is expected of them. For girls and women it is many times more difficult not to behave in a culturally appropriate way than for boys and men, since girls and women are to a large extent dependent on their families or communities and in addition they may also have been taught that they have to uphold the family honour - they are regarded as the 'bearers' of culture - or that it is their divine duty to bear their lot. Indeed, if girls and women choose to turn their backs on cultural prescriptions and claim their human rights, they may be accused of betraying their family, community, religion or culture. 52 The ultimate result may be that they are ostracized which means that they can no longer fall back on the safety net of their family or community. 53 49

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Especially low skilled or labour-intensive work that requires a lot of patience and manual dexterity is stereotypically viewed as 'women's work'. VALERIE L. OosTERVELD, 'Women and Employment', in: Kelly D. Askin and Dorean M. Koenig (eds.), Women and International Human Rights Law, Vol. 1, Transnational Publishers Inc., Ardsley, New York, 1999, pp. 389-390. In addition to the unremunerated work women may do in their own household, many women are not paid for the work they do in the family business. See e.g. J.E. BIESHEUVELVERMEIJDEN, 'Loon naar Werken' (To get what you deserve)', in: A.W. Heringa, J. Hes, L. Lijnzaad (eds.), Het Vrouwenverdrag: een beeld van een verdrag... (The Women's Convention: a picture of a treaty... ), MAKLU Uitgevers, Antwerpen-Apeldoorn, 1994, p. 202. Typically, women will earn an 'individual' income, while men will earn a 'family' income since they are supposed to be the family's provider. OosTERVELD, 1999, p. 389. SANDRA FREDMAN, Discrimination Law, Clarendon Law Series, Oxford University Press, Oxford, 2002, pp. 29-30. AYELET SHACHAR, Multicultural Jurisdictions; Cultural Differences and Women's Rights, Cambridge University Press, Cambridge, 2001, p. 39. Corinne Packer states that Sub-Saharan African women who are aware of their lower social status have no other option but to accept the status quo including harmful traditional practices since their low economic, financial and educational status makes it impossible for them to leave. CORINNE PACKER, Using Human Rights to Change Tradition: Traditional Practices Harmful to Women's Reproductive Health in sub-Saharan Africa, Intersentia, Antwerp, 2002, p. 48. Intersentia

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It is important to understand the motives why there is such a strong urge to cling to traditional practices and customs and to penalize those who wish to opt out because such understanding is essential for the possibilities of change. First of all, certain groups in society will have a vested interest to maintain the status quo. Men who take leadership positions, who traditionally are the land owners, the income generators and the ones who will receive the inheritance, may not wish to give up their privileged position and they may fear that their masculinity is under attack when women are claiming equal positions in society. 54 This also brings up the issue of who can rightfully claim that certain cultural practices should be maintained. Those who stake such claims may have vested interests in upholding them and they may not represent the sentiment of the cultural group as a whole. 55 But it is not only men or the elite of a certain group that may oppose cultural change. Also women may be very hesitant to change cultural ways and especially religious customs. Many women derive their identity and security from being part of a cultural group. 56 They may be afraid of change or of taking financial responsibility, and some women also have an interest to maintain traditional practices such as circumcisers or wedding arrangers. 57 For groups that form a cultural, ethnic or religious community within a multicultural State, as well as for former colonies, the urge to stick to the old ways and traditions becomes like a sacred duty. 58 Also women, who understand that they are discriminated against within their own group, will defend their culture for fear of losing their identity and sense of belonging. The interests of the State to maintain the status quo should also not be underestimated. Many States fail to understand the long term benefits of woinen participating equally in society, but only see the short term obstacles and costs for society. States may wish to be identified by their unique cultural identity even

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RIKKI HOLTMAAT and )ONNEKE NABER, 2011, pp. 72-73. FREDMAN, 2002, p. 30. As Chanock puts it: 'There is a wide gap between those who speak for cultures and those who live the culture. The voices of the elites overwhelm the others. Culture tends to privilege some voices and patterns of acts while ignoring and marginalizing others.' MARTIN CHANOCK, 'Human Rights and Cultural Branding: Who Speaks and How', in: Abdullahi A. An-Na'im (ed.), Cultural Transformation and Human Rights in Africa, Zed Books Ltd, London, 2002, pp. 38-39. Also see RIKKI HOLTMAAT and )ONNEKE NABER, 2011, p. 45. FLORENCE BUTEGWA, 'Mediating Culture and Human Rights in Favour of Land Rights for Women in Africa: A Framework for Community-level Action', in: Abdullahi A. An-Na'im (ed.), Cultural Transformation and Human Rights in Africa, Zed Books, London, 2002, p. 109. ISABELLE R. GUNNING, 'Women and Traditional Practices: Female Genital Surgery', in: Kelly D. Askin and Dorean M. Koenig (eds.), Women and International Human Rights Law, Vol. 1, Transnational Publishers Inc., Ardsley, New York, 1999, p. 659. 'Particularly formerly oppressed and colonized cultures demand that their own historical experiences and cultural differences be respected. It is this demand for parity of respect which underpins the stress on preservation of cultural differentiation, the invention of tradition and the imagining of communities.' CHANOCK, 2002, p. 53. Fo_r groups in multicultural societies see SHACHAR, 2001, p. 46.

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if this entails maintaining an unequal position for women in their culture. 59 Moreover, women take a lot of important work on their shoulders that is unpaid such as taking care of children, the elderly and the sick. Work of great social value and necessity in every community, and it would cost an enormous amount of money if society would have to pay for it. What is forgotten, however, is that women as part of the workforce and as independent human beings who can take care of themselves and their family are of much more value to society and will actually contribute to a country's development and welfare. 60

4.2. CULTURE AS AN INSTRUMENT OF CHANGE While the current culture may seem to be permanent and rigid, in essence it is dynamic and it will change over time due to all kinds of influences. 61 Fredman suggests that what we need is transformative equality; a radical restructuring of society before true equality can be achieved. 62 This would not only involve the abolition of traditional practices and customs that negatively affect women's equality, but would also mean the introduction of completely new ideas, practices and customs that are based on gender equality. It is a fallacy to suppose that gender equality already exists in the West or that it would be based on a Western tradition. In my opinion it is also a mistake to think that cultures are so diverse that universal agreement about women's rights would be impossible to achieve. What can be perceived at the moment is that irrespective of cultural diversity, worldwide a culture of discrimination against women has developed based on universal gender stereotypes and gender roles that deny women the right to develop themselves and use their full potential. What is needed is a strong promotion of a universal culture of gender equality until it becomes part of customary law and is regarded as so valuable and important that the prohibition of gender discrimination is accepted by States as a rule of ius cogens.

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RIKKI HOLTMAAT and )ONNEKE NABER, 2011, p. 74. See e.g. UNDP, 'Human Development Indicators', in: Human Development Report 2007-2008, UNDP, New York, 2007, pp. 326-346. Cultural norms and habits will be discarded and replaced in response to changing socioeconomic circumstances. FLORENCE BuTEGWA, 2002, p. 122. 'Instead of attempting to adapt members of under-represented groups better to fit in with the existing framework, it is crucial to transform the existing framework in order to reflect the norms of the excluded "other'". SANDRA FREDMAN, 2002, pp. 193-194. Also SANDRA FREDMAN, 'Beyond the dichotomy of formal and substantive equality. Towards new definitions of equal rights', in: I. Boerefijn, F. Coomans, ). Goldschmidt, R. Holtmaat and Ria Wolleswinkel (eds.), Temporary special measures. Accelerating de facto equality of women under Article 4(1) UN Convention on _the Elimination of All Forms of Discrimination Against Women, Intersentia, Antwerp, 2003, pp. lll-ll8, and RIKKI HoLTMAAT and )ONNEKE NABER, Women's Human Rights and Culture: From Deadlock to Dialogue, Intersentia, Antwerp, 2011, pp. 26-27. lntersentia

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An-Na'im rightly claims that all States have to start by critically evaluating their own culture and determining to what extent they need to change it in order to bring it in conformity with human rights. To this end he recommends the use of internal discourse - implying that everybody in society should be involved in assessing cultural rules and traditions - and of cross-cultural dialogue since all cultures may learn from each other's experiences, and good practices in one State may be an inspiration to act along similar lines in another State. 63 While An-Na'im's theory may have some imperfections that make it difficult to put it to practice, 64 his point of departure that cultural assessment is necessary in every State is certainly a valuable notion and signifies that as far as the socio-economic position of women is concerned, no culture should feel superior or inferior to another. Breaking through gendered patterns will necessitate the rearrangement of society and the development of a more flexible social structure. For instance, at the moment many Western societies rely on the traditional family model where men are the breadwinners who will leave the house in the morning for their remunerated employment only to return in the evening. Women predominantly stay at home to take care of the household, the children, the sick and the elderly and in addition struggle to combine all this with some income generating work. More flexibility in working hours and more and differently organized childcare services would facilitate the combination of raising children and remunerated employment for all parents. 65 If women participate as equals on the labour market and are able to contribute substantively to the financial costs of the family, this will make it possible for men to spend less hours on remunerated employment and instead get the chance to see their children grow up. Men should realize that they are missing out on a great part of their family life at the moment and thus they stand to gain a lot when tasks are more equally divided between men and women.

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ABDULLAH! AHMED AN-NAIM, 'State Responsibility Under International Human Rights Law to Change Religious and Customary Laws', in: Rebecca J. Cook (ed.), Human Rights of Women, National and International Perspectives, University of Pennsylvania Press, Philadelphia, 1994, p. 174. Also see ABDULLAH! A. AN-NA'IM and JEFFREY HAMMOND, 'Cultural Transformation and Human Rights in African Societies', in: Abdullahi A. An-Nairn (ed.), Cultural Transformation and Human Rights in Africa, Zed Books, London, 2002, pp. 13-37. For example, internal discourse about gender equality will depend on the input of women. However, the most oppressive societies are characterised by the fact that women are not im·olved in decision-making which makes it difficult to hear their voices. Particularly former colonies may resent Western States and their ideas to such an extent that they do not wish to be influenced by them, but on the contrary want to fall back on traditions that pre-date colonialism. Fredman suggests that the tradition of long working hours should be replaced by a flexible system that makes it easier to attain a balance between home and work both for male and female workers. FREDMAN, 2002, p. 193 ..

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In order to change people's mindset about gender appropriate behaviour, new measures should be introduced. For instance, as regards the education of school children it is not enough to delete gender stereotypes from school books. In addition, schools should introduce new subjects and learning methods that teach children that irrespective of their sex they have to become autonomous, responsible citizens who are able to take care of themselves and their families. Learning about hygiene, food processing, and childcare, both in theory and in practice, is important for all human beings next to cognitive development, and making it part of the curriculum is bound to change the low appreciation that momentarily exists for care-giving work. Parents should be convinced that girls too will be expected to bear the financial burden of their families once they are adults which should have consequences for their education, job training and status. States should become actively involved in all kinds of information providing means and methods that can be used to influence and change people's stereotypical ideas. Next to banning negative stereotypes from the media, advertising, language, and songs, new television and radio programmes, shows, plays, songs, dances, proverbs or other culturally appropriate activities and expressions should be developed that break with traditional patterns and inferior images of women. Some good examples may be found as regards the methods that were used to eradicate traditional practices such as foot binding, 66 sati, 67 and - in some communities - female genital mutilation. 68 It may be a task for international organs, such as CEDAW to make it clear to States, and ethnic groups, that there is no need to fear the loss of cultural identity if they live up to human rights obligations. Multiculturalism is interesting and variety is a positive thing. However, diversity should be found in such things as the fine arts, language, architecture or business mores, and not in the way in which, or the extent to which women are discriminated against. Surely cultural diversity and identity can survive if girls and women become boys' and men's equals both before the law and in practice. 66

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When laws against foot binding were largely ignored, new innovative arguments and measures were used that did have the desired effect. Several actors played a role: male reformers argued that it in order to strengthen the nation, it was necessary to improve the status of women; antifoot binding societies, encouraged parents to let their sons only marry with girls who had normal feet; missionary schools promoted natural feet by offering scholarships only to girls with unbound feet, etc. KATHRYN SIKKINK, 'Historical Precursors to Modern Campaigns for Women's Human Rights: Campaigns Against Footbinding and Female Circumcision', in: Susan Deller Ross (ed.), Womens Human Rights: The International and Comparative Law Casebook, University of Pennsylvania Press, Philadelphia, 2008, pp. 482-486. A pivotal role in the campaign against sati - the burning of Hindu widows - was played by a Bengali Brah min who argued that sati was contrary to Hinduism and who gave an alternatiYe interpretation ofreligious texts. CORINNE PACKER, 2002, pp. 162-164. Rites of passage for girls that entail information and education on hygiene and childcare instead of cutting make becoming a woman a festiYe occasion rather than a painful and traumatic experience. Also see Chapter 13 by Phyllis Livaha in this book. Intersentia

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4.3. RELEVANT ACTORS Cultural changes may be initiated and supported at different levels. CEDAW can be of invaluable assistance especially when good practices of State behaviour are noted and published so that other States parties can benefit from them. However, the international level is of minor importance with regard to changing attitudes and mentalities; it can only promote and advise. The actual change must come from within and must happen at the domestic, community, and family level. That is why the actors on these levels are the most important. To start with at the domestic level it is important that all kinds of authorities are well aware of the rights and obligations contained in the Women's Convention and particularly of women's right to equality and the implications this may have for customs, traditions and stereotypes. That is why States parties should give specific training in this regard to all kinds of officials, especially the judiciary and the police. In Court cases judges should not give precedence to discriminatory traditional rules and habits over women's legal right to equality. The fact that a woman belongs to a certain ethnic or religious group, does not imply that she has given up her right to equality. 69 Especially in cases of gender based violence such as rape, female genital mutilation and domestic violence, the police should be aware of the illegality of such acts and not pass them off as a private matter or, worse, put the blame on the female victim because apparently she did not obey her husband.7° In order to come up with innovative extra legal measures that will significantly change society, States should not only seek advice of human rights experts, but also depend on authorities in other disciplines - such as psychologists, sociologists and anthropologists - because they will understand which measures will work to change the population's gender biased mindset. At the community level, besides local ;mthorities, Civil Society Organisations - in particular grassroots NGOs that know the culture and speak the language, religious leaders and teachers have a great deal of influence. If States succeed in enlisting these actors, and in giving them a gender sensitive training the battle will be half won since they are better equipped to change people's way of thinking than national authorities.

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Public authorities are sometimes under the impression that women have made a conscious choice to belong to a certain group and that they can easily sever all connections when they feel that they are discriminated against. This 'right of exit' argument is· invalid, however, because for women who lack education and income and who have emotional ties to their family and community cannot simply opt out. AYELET SHACHAR, Multicultural Jurisdictions; Cultural Differences and Women's Rights, Cambridge University Press, Cambridge, 20CH, p.41. See e.g. INGRID WESTENDORP, 'If home is no haven: women's right to adequate housing in cases of domestic violence', in: Ingrid Westendorp and Ria Wolleswinkel (eds.), Violence in the Domestic Sphere, Intersentia, Antwerp, 2005, p. 132.

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The most difficult bastion to tackle in the struggle towards gender equality will be religious institutions. Considering the role that religion plays in most cultures - even in secular States - it is imperative that religious leaders can be convinced of the necessity that discriminatory attitudes against girls and women have to be remodelled. While all religions preach human dignity and respect for human beings, they are invariably based on traditional views that date back to times when gender roles were dictated by men's physical strength and women's unbridled pregnancy. Times have changed, however, and it should be possible to abolish religious customs that discriminate against women without affecting or harming the core of people's religious beliefs. Without the help and support of religious leaders, it will be almost impossible to change certain deep rooted customs and traditions. Particularly ideas that girls and women should behave in a certain way because it is their divine duty carry so much weight that secular authorities or other actors will be unable to alter or abolish them. 71 Finally, the real change must take place at the family level. This is the level where discrimination against girls begins and will leave an imprint that determines the rest of a woman's life. Many women grow up with the idea that they have a certain predestined role to play in society and they are not aware of any other options that they may have. They abide by certain practices and traditions without realizing that these make them powerless and subjugated in relation to men. 72 Many men, too, are not aware of women's right to equality and they play their stereotyped role without thinking twice about it. Awareness raising and formal and informal education, both general literacy and human rights education are therefore of the utmost importance. When parents are well informed and aware of the harm in certain practices and stereotypes, while at the same time they realize that adequate alternatives are available, chances are that they will raise their sons and daughters in a different way, breaking with traditional patterns.

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CONCLUSION

Culture should not be regarded as working against women, but on the contrary, it should be embraced as instrumental in achieving a change of mentality and taking women's equality to the next level. It seems clear that equality cannot be achieved without a radical change in societies all over the world. The right way to implement Article 5 is not only to abolish or modify gender stereotypes and harmful practices, but also to introduce new customs and practices that will become generally accepted. 71

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In the fight against female genital mutilation it has been particularly helpful that several Islamic religious leaders have publicly explained that the Qur'an does not contain a duty to circumcise girls. In the struggle to abolish sati the alternative interpretation of Hindu religious texts was a deciding factor. CHRISTINA M. CERNA and JENNIFER C. WALLACE, 1999, pp. 644-645. Intersentia

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Examination of CEDAW's Concluding Observations shows that the Committee may be ready to adopt a General Recommendation on Article 5 that is not offensive or too controversial, but may be useful to guide the States parties. Such a Recommendation would make CEDAW's advice more consistent and applicable to all States. The General Recommendation should be based on the notion that culture is a dynamic concept that changes over time. States parties should be requested to look into the national situation and make an inventory of all existing traditional customs and stereotypes and assess whether and if so to what extent such practices have harmful effects on the human rights of girls and women. Such a catalogue is important because awareness is the first step towards change. Simultaneously, all legislation and policies that may support or perpetuate discriminatory practices should be abolished. While the obligations under Article 5 are legal obligations, the appropriate measures that have to be taken to achieve a culture of equality are of an extra legal character. That is why States parties should be advised to draw up a comprehensive plan not just with the help of human rights lawyers, but also after consultation with and the assistance of sociologists, psychologists, and anthropologists because these experts will have better insights to determine which measures would appeal to people and would have the desired impact. It should be made clear that the national authorities themselves are unable and unsuited to bring about a change of mentality. That is why they must enlist the cooperation of all kinds of actors, particularly NGOs, teachers, and religious leaders. While it will be non-State actors who actually inform and educate the public, it should be the States parties that finance training, performances and campaigns. Innovative new programmes for education of children should be introduced that are aimed at raising autonomous persons who can take care of themselves and their dependents both financially and otherwise. This new way of teaching implies that teachers receive a special training in which they learn to recognize stereotypical patterns and know how to convey gender equality on the children and, indirectly, on their parents. The media and any other way of informing the public in general should be used that is adequate and suitable in a certain society. This may entail that with the help of religious leaders, artists, and performers, new ceremonies, plays, songs, dances etcetera may have to be created that are based on equality if that is the best way in which new customs can be introduced. In order to make a General Recommendation on Article 5 more concrete, it would be useful if CEDAW would refer to good practices that have resulted in a change of mentality or the abolition of harmful traditions. A cultural change will only be successful if it is accepted by the people who live the culture and acceptance becomes viable when new alternatives are offered that leave the sense of identity, security and belonging intact.

Intersentia

131

Name Index Adams, Abigail 226-7, 234 Adams, John 227 Addams, Jane 242 Ahanhanzo, Maurice Glele 492, 494, 495 Amado, M. 179 Andrade, Carrera 157 An-Na'im, Abdullahi Ahmed 585 Anneke, Mathilde Francesca 233 Anthony, Susan B. 239 Appadorai, A. 172 Aquinas, Thomas 5-6 Aquino, Benigno 157 Arbour, Louise 318 Aristotle 5, 10, 54, 81, 82, 405 Astell, Mary 222, 223 Austen, Jane 230, 268 Azkoul, Karim 173, 181 Baldaccini, Anneliese xix-xx, xxi, 449-505 Banda, Fareda xxi, 533-58 Banton, Michael xvii, xxi, xxii, 191-214, 562 Barnard, C. 521 Baroody, Jamil 181 Bayefsky, Anne F. xv, 71-104 Beaufort, L.J.C. 181 Begtrup, Bodi! 174, 175, 178, 181, 182,183,249, 250 Behn, Aphra 222-3 Bell, M. 519,524,526 Bell, Susan 229, 230 Bennoune, Karima xxii Ben Sheik, Twehida 246 Berlin, Isiah 7 Bernardino, Minerva 175, 182, 249 Besant, Annie 244 Blackwell, Elizabeth 237 Boccaccio, Giovanni 220 Bodichon, Barbara 229 Bogomolov, Alexander 163, 169, 173, 179 Borisov, Vladimir 160--61, 168, 170 Boserup, Ester 259 Boyle, Kevin xix-xx, xxi, 449-505 Bradlaugh, Charles 244

Bradwell, Myra 238 Broeks, S.W.M. 58 Bronte, Charlotte 230, 232 Bunch, Charlotte 370 Burke, Edmund 225 Burney, Fanny 230 Burrows, Noreen 401 Butler, Josephine 242 Byrnes, Andrew 401 Campos Ortiz, Pablo 180 Cassin, Rene 149-50, 157, 162, 163, 164, 165, 166, 171, 172-3, 177, 181, 185 Chang, Pen-Chun 166, 171, 173 Chapman, Carrie 240 Charles II, King 244 Charlesworth, Hilary 404, 415, 419 Chinkin, Christine xviii-xix, xxi, 369-88 Cicero 221 Cisneros, Guy Perez 156, 172, 173 Clemenceau, Georges 242 Clifford, Jarlath xiii, 3-28 Coke, Eduardo Cruz 150 Comstock, Anthony 245 Condorcet, Jean-Antoine-Nicolas De Caritat 225 Corbet, F. 157 Cornell, Drucilla 429 Craven, Matthew xv-xvi, 105-45 Cusack, Simone xxii Dairiam, Shanthi 425 Daniels, Jonathan 159, 161, 168 Davies, Ernest 158 de Alba, Pedro 172 de Arechaga, Jimenez 184 de Genlis, Madame 225 de Gouges, Olympe 225, 236-7 de Gournay, Marie 222 Dehousse, Fernand 169 de la Chapelle, Philippe 153 Demchencko, Stephan 156 de Pizan, Christine xvii, 217, 220-22, 230, 263, 266,268

592

Equality and Non-Discrimination under International Law

de Romer, Roman 178, 183 de Stael, Madame 230 de Tejada, Enrique Munoz-Vargas y Herreros 424 de Tocqueville, Alexis 231, 234 de Wiart, Count Carton 157, 172 Donnelly, Jack 8, 303, 306 Dossou, Robert 492 Dostoyevsky, Fyodor 232 Dukeston, Lord 169, 176 Dworkin, Ronald 7-8

Hepple, B. 521 Hitler, Adolf 159, 297 Hobbes, Thomas 6, 226 Hoffman, Lord 443 Hood, A.J.D. 151-2 Hossain, Rokeya Sakhawat 233 Humphrey, John xiii, 149, 157, 162, 166, 174, 177 Huston, Perdita 246 Hutchinson, Anne 223-4, 234-5

Edwards, Alice xix, 389-447 Eide, Asbj0rn 491 Eisenhower, Dwight D. 247 Ekstrand, E.E. 160, 168 Eliot, George 231, 232 Ellis, Evelyn 9 Ellis, Havelock 246

Idi Amin 213 Ikramullah, Shaista 181, 182

Farrior, Stephanie xx, xxii, 559-67 Fisher, John xviii, 293-334 Flynn, L. 512 Foster, John 456 Fourier, Charles 227 France, Anatole 55 Fraser, Arvonne S. xvii, 215-68, 275-6 Fredman, Sandra 584 Freeman, Marsha 237 Fuller, Margaret xxi, 232 Fullinwider, Robert 403

Kai-shek, Chiang 153 Kalinowska, Fryderika 157, 180, 182 Katz-Suchy, Juliusz 158 Kelly, Joan 221 Key, Ellen 246 King, Martin Luther Jr 562 Klekovkin, Michael 152, 170-71 Klerk, Y. 133 Kollantai, Alexandra 239, 254 Koretsky, Vladimir 150, 166, 167, 175 Kountouros, Haris I 0

Gaitskill, Lady 200, 209, 562 Gardner, John I 0 Gaskell, Elizabeth 231,232 Gearty, Conor 6 Gildersleeve, Virginia 248, 249 Goecke, ~ahide 376, 384, 421 Goegg, Marie 239 Goldman, Emma 244, 245 Goldscheid, Julie 441, 443 Grimke, Angelina 234 Grimke, Sarah 234-5 Grumbach, Salomon 165

Lafayette, Marie Joseph 231 Lamptey, Jake Obetsebi 204, 207-8 Lauterpacht, Sir Hersch xi, 30, 162 Lebeau, Ronald 176, 184 Ledon, Amilia C. de Castillo 176, 179, 184, 185 LeFaucheux, Marie-Helen 248, 249 Leigh-Smith, Barbara 229, 232 Lenin, Vladimir 153 Lerner, Gerda 216, 221, 234 Lerner, Natan 562 Levit, Nancy 397 Lillich, Richard 124 Lindholm, Tore 153 Locke, John 6, 226 Lockwood, Belva 238 Loufti, Omar 155, 164 Lovelace, Sandra 263, 424

Habib, Mohammed 172 Halley, Janet 396 Hammarberg, Thomas 310 Harry, Ralph 175 Henkin, Louis 143 Heppel, R.P. 154

James, Henry 232 Jefferson, Thomas 172 Johnson, Joseph 225 Joslin, Juliet 307

Macauley, Catharine 225

Equality and Non-Discrimination under International Law McCrudden, Christopher I 0 McKenzie, Jean 249 MacKinnon, Catharine 404-5, 435, 446 McNamara, William 159, 167-8 Magdoft: Harry 153 Mahoney, Kathleen 402-3, 446 Malik, Charles H. 153, 157, 160, 167 Manuilsky, Dimitri Z. 158 Martineau, Harriet 231, 242 Marzouk, Zahia 246 Masani, Minocheher 159, 161, 167, 168 Mather, Cotton 235 Mayhew, Christopher 171 Megret, Frederic xvii, 269-91 Mehta, Hansa 160, 174, 175--6, 184-5, 250 Menander 218 Menon, Lakshmi 175 Meron, Theodor 144 Mill, John Stuart 216, 219, 229-30, 232, 244, 262,267 Moeckli, Daniel xiv-xv, 53-69 Moers, Ellen 230, 231, 232 Monroe, Elizabeth 161, 167 Montagu, Lady Mary Wortley 223 More, Hannah 223 Morsink, Johannes xvi-xvii, 149-90 Mott, Lucretia 233, 235-6 Newlands, A.M. 155-6 Nickel, James 112 Nightingale, Florence 237 Nisot, Joseph 159, 161, 168, 170 Nkrumah, Kwame 204 Norton, Caroline (nee Sheridan) 228, 231 Norton, George 228 Nozick, Robert 7 Offen, Karen 229, 230 O'Flaherty, Michael xviii, 293-334 Ordonneau, Pierre 155 Otteson-Jensen, Elise 246 Owen, Robert 233 Paine, Thomas 6, 225 Parkes, Bessie 232 Parmar, Sejal xx, 507-30 Pavlov, Alexei 150-52, 163, 164-5, 170-72, 176, 177-8, 180, 182, 183, 184, 185 Peters, Christopher 7 Pimentel, Silvia 547

593

Plato 5, 191, 194 Pollis, Adamantia 154 Popper, Sir Karl 194 Pusey, Lisa xxii Radevanovic, Ljuba 158 Ramcharan, B.G. xii, xiii-xiv, 29-52, 143 Rawls, John 7 Rehot: Lars Adam 537, 538 Rob, Janet 184 Robinson, Mary xxii-xxiii, 268, 319 Rodriguez, Evangelina 246 Romulo, Carlos P. 153, 160, 163, 174 Roosevelt, Eleanor xvi, 151-2, 166-7, 170, 171, 174, 175, 177, 178, 179, 181, 183, 185, 247,249,351 Roosevelt, Franklin 249 Rose, Ernestine 232-3 Rousseau, Jean-Jacques 226 Roy, Herard 159, 167 Rudolf, Beatte xxi Sand, George 231-2 Sandifer, Durward 152 Sanger, Margaret 245-6 Santa Cruz, Hernan 149, 152, 169, 183 Schaeffer, Catherine 180 Schreiner, Olive 246 Schwab, Peter xxii, 154 Schwelb, Egon 207-8 Sen, Amartya 7,371,391 Shafaq, Rezazada 159, 161, 168 Shakespeare, William 222 Shelton, Dinah 16, 337-68 Sipila, Helvi 247, 252, 256, 257 Spanien, Samuel 159, 161, 167 Spender, Dale 223 Stalin, Joseph 152, 154, 158 Stanton, Elizabeth Cady 235-7, 239 Stepanenko, Afanasi 162, 163, 179, 183, 185 Stone, Lucy 238 Stowe, Harriet Beecher 231 Stuart, Alison xxii Tanaka, Kotaro xi-xii, 78, 89, 97, 118, 412-13, 415,431 Taylor, Mary 232 Tenekides, George 563 Tepliakov, Valentin 174 Thornberry, Patrick 137

594

Equality and Non-Discrimination under International Law

Thucydides 5 Tito, Josip Broz 152, 158 Tomasevki, Katarina 550 Toonen, Nicholas 307 Tristan, Flora 232 Trollope, Anthony 231 Trollope, Frances 231 Truman, Harry S. 151 Turgenev, Ivan 232 Uralova, Evdokia 179, 249 Urbina, Maria Lavalle 254 Van Boven, Theo 207, 494 Van Istendael, August 179, 180 Verchick, Robert 397 Von Hippe!, Theodor 225 Von Schurman, Anna Maria 222 Vos, A.P. Johannes 415 Vyshinsky, Andrei 158 Waddington, Lisa 519, 524, 526 Washington, George 225

Watt, Alan 172 Weissbrodt, David xii Westendorp, Ingrid xxii, 569-89 Western, Peter 7 Whitman, Walt 232 Wilkinson, Ellen 249 Willard, Frances 238, 239, 253 Wilson, Geoffrey 155, 163, 164, 170, 183, 184, 185 Wilson, Woodrow 242 Winthrop, John 224 Wollstonecraft, Mary 217, 224--6, 229, 230, 234, 235, 241, 266 Wright, Francis 231 Wu, C.H. 160, 161, 168 Yildrin, Fatma 379, 384 Young, Iris Marion 403-4, 446 Zaretsky, Eli 177 Zetkin, Clara 239 Zhadanov, Andrei 154