Sustantive Equality and Human Rights Lilla Farkas

Legitimacy of HR language when applying RED RED (3) 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 Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories.

HR language in RED I. RED Article 2(1): there shall be no direct or indirect discrimination based on racial or ethnic origin. RED Article 2(1): there shall be no direct or indirect discrimination based on racial or ethnic origin. RED Article 3(1): RED shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to RED Article 3(1): RED shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to

HR language in RED II. (a)-(c) employment; (a)-(c) employment; (d) membership/involvement in an organisation of workers or employers; (d) membership/involvement in an organisation of workers or employers; (e) social protection, incl social security and healthcare; (e) social protection, incl social security and healthcare; (f) social advantages; (f) social advantages; (g) education; (g) education; (h) access to and supply of goods and services which are available to the public, including housing. (h) access to and supply of goods and services which are available to the public, including housing.

HR language III. ICERD Article 5 (e): States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, notably in the enjoyment of : ICERD Article 5 (e): States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, notably in the enjoyment of : (i) The right to work …; (i) The right to work …; (ii) The right to form and join trade unions; (ii) The right to form and join trade unions; (iii) The right to housing; (iii) The right to housing; (iv) The right to public health, medical care, social security and social services; (iv) The right to public health, medical care, social security and social services; (v) The right to education and training; (v) The right to education and training; (f) The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks. (f) The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks. Economic and social rights + non-discrimination as stipulated in ICESCR, ICERD – education also covered in ECHR (Protocol 12) Economic and social rights + non-discrimination as stipulated in ICESCR, ICERD – education also covered in ECHR (Protocol 12)

Justiciability of ES Rights in RED Economic and social rights programmatic under RED? Economic and social rights programmatic under RED? Individual justice (right to individual petition) v. traces of group justice (indirect discrimination in community law– eg. of application: Ostrava II) Individual justice (right to individual petition) v. traces of group justice (indirect discrimination in community law– eg. of application: Ostrava II) Rights viz. the State v. the private sector Rights viz. the State v. the private sector HR law’s effect on implementation of RED: interpretation of substantive rights HR law’s effect on implementation of RED: interpretation of substantive rights

HR law’s effect on RED I. RED Article 5: With a view to ensuring full equality 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. OPTIONAL RED Article 5: With a view to ensuring full equality 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. OPTIONAL ICERD Article 2.2: States Parties shall, when the circumstances so warrant, take, in the social, economic … fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms … MANDATORY ICERD Article 2.2: States Parties shall, when the circumstances so warrant, take, in the social, economic … fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms … MANDATORY

HR law’s effect on RED II. RED Article 15: sanction must be effective, proportionate and dissuasive – is positive action the only such sanction in some instances? RED Article 15: sanction must be effective, proportionate and dissuasive – is positive action the only such sanction in some instances? ICERD Article 3: States Parties particularly condemn racial segregation … and undertake to prevent, prohibit and eradicate all practices of this nature ICERD Article 3: States Parties particularly condemn racial segregation … and undertake to prevent, prohibit and eradicate all practices of this nature ICERD Article 5: States Parties undertake to prohibit and to eliminate racial discrimination in all its forms … ICERD Article 5: States Parties undertake to prohibit and to eliminate racial discrimination in all its forms …

ECHR case law I. Thlimmenos: “The right not to be discriminated against … is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.” BUT no positive obligation Thlimmenos: “The right not to be discriminated against … is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.” BUT no positive obligation Connors: vulnerable position of Gypsies (as an ethnic minority group) warrants special consideration of their needs arising from Gypsy way of life, and imposes positive obligation on States under Article 8 Connors: vulnerable position of Gypsies (as an ethnic minority group) warrants special consideration of their needs arising from Gypsy way of life, and imposes positive obligation on States under Article 8 Cyprus v. Turkey: Once special measures are in place for the education of an (ethnic) minority group, they shall be maintained. Cyprus v. Turkey: Once special measures are in place for the education of an (ethnic) minority group, they shall be maintained.

ECHR case law II. D.H. and others 2007 (Ostrava II): unless special measures taken to accommodate Roma (ethnic) minority needs, no justification for discrimination D.H. and others 2007 (Ostrava II): unless special measures taken to accommodate Roma (ethnic) minority needs, no justification for discrimination at the very least, there is a danger that the tests were biased and that the results were not analysed in the light of the particularities and special characteristics of the Roma children who sat them. In these circumstances, the tests in question cannot serve as justification for difference in treatment at the very least, there is a danger that the tests were biased and that the results were not analysed in the light of the particularities and special characteristics of the Roma children who sat them. In these circumstances, the tests in question cannot serve as justification for difference in treatment It also appears indisputable that the Roma parents were faced with a dilemma: a choice between ordinary schools that were ill-equipped to cater for their children's social and cultural differences and in which their children risked isolation and ostracism and special schools where the majority of the pupils were Roma It also appears indisputable that the Roma parents were faced with a dilemma: a choice between ordinary schools that were ill-equipped to cater for their children's social and cultural differences and in which their children risked isolation and ostracism and special schools where the majority of the pupils were Roma the schooling arrangements for Roma children were not attended by safeguards that would ensure that … the State took into account their special needs as members of a disadvantaged class the schooling arrangements for Roma children were not attended by safeguards that would ensure that … the State took into account their special needs as members of a disadvantaged class

ECHR case law III. the relevant legislation as applied in practice at the material time had a disproportionately prejudicial effect on the Roma community, the Court considers that the applicants as members of that community necessarily suffered the same discriminatory treatment. Accordingly, it does not need to examine their individual cases. the relevant legislation as applied in practice at the material time had a disproportionately prejudicial effect on the Roma community, the Court considers that the applicants as members of that community necessarily suffered the same discriminatory treatment. Accordingly, it does not need to examine their individual cases. D.H. and others 2007 (Ostrava II) cont: if discriminatory administrative practice established, no need to examine individual circumstances D.H. and others 2007 (Ostrava II) cont: if discriminatory administrative practice established, no need to examine individual circumstances

CERD General Recommendation No. 19: Racial segregation and apartheid – obligation to take positive action to fight discrimination in private sphere General Recommendation No. 19: Racial segregation and apartheid – obligation to take positive action to fight discrimination in private sphere a condition of partial segregation may also arise as an unintended by-product of the actions of private persons. a condition of partial segregation may also arise as an unintended by-product of the actions of private persons. In many cities residential patterns are influenced by group differences in income, which are sometimes combined with differences of race … so that … individuals suffer a form of discrimination in which racial grounds are mixed with other grounds. In many cities residential patterns are influenced by group differences in income, which are sometimes combined with differences of race … so that … individuals suffer a form of discrimination in which racial grounds are mixed with other grounds. CERD invites States to work for the eradication of any negative consequences that ensue, and to describe any such action in their periodic reports. CERD invites States to work for the eradication of any negative consequences that ensue, and to describe any such action in their periodic reports.

ECOSOC General Comment No. 13: The right to education (31) – limits to justification for discrimination General Comment No. 13: The right to education (31) – limits to justification for discrimination The prohibition against discrimination enshrined in article 2 (2) of the Covenant is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination. The prohibition against discrimination enshrined in article 2 (2) of the Covenant is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination.

Minority rights Permanent International Court of Justice advisory opinion on Minority Schools in Albania – special group rights in order to accommodate minority needs BUT no positive obligation on States Permanent International Court of Justice advisory opinion on Minority Schools in Albania – special group rights in order to accommodate minority needs BUT no positive obligation on States “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.” Deprivation of the minority community from institutions that ensure the preservation of minority ‘peculiarities’ would render minority rights protection ‘illusory’ as it could compel the minority “to renounce that which constitutes the very essence of its being a minority”. “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.” Deprivation of the minority community from institutions that ensure the preservation of minority ‘peculiarities’ would render minority rights protection ‘illusory’ as it could compel the minority “to renounce that which constitutes the very essence of its being a minority”. FCNM Article 3.2: ethnic minority rights can be exercised individually as well as in community with others FCNM Article 3.2: ethnic minority rights can be exercised individually as well as in community with others FCNM Article 4.2: full and effective equality – measures shall be proportionate and aim at accommodating minority needs FCNM Article 4.2: full and effective equality – measures shall be proportionate and aim at accommodating minority needs