Discrimination: A persistent serious human rights violation

Human rights are a collection of principles that regulate the interactions and duties that exist amongst groups and people on the one hand, and governments and other non-state entities on the other.The Universal Declaration of Human Rights (UDHR) had been observed to have made the ground-breaking statement that would put an end to the alleged pre-Enlightened period of darkness: “all mortal individuals are inherently autonomous and equivalent in dignity and responsibilities.” Because non-discrimination is usually seen as a negative reaffirmation of the concept of equality, it is reasonable to conclude that all civil liberties, as currently construed, are primarily about non-discrimination. All human rights, according to current interpretations, are fundamentally about preventing discrimination. Non-discrimination is usually viewed as a negative restatement of equality. Instead than arguing that human rights should be construed purely in light of these assumptions, the author of this essay hopes to demonstrate the limitations of this approach. In lieu of a general concept of non-discrimination, the author of this essay urges respect for a politics of diversity. The latter is supposed to create a better basis for human rights debate, via fostering positive discrimination and dialogue. The purpose of this article is to use models and theories to demonstrate that civil freedoms should not be interpreted only on this basis. Encompassing non-discrimination is not required, but rather understanding of current human rights legislation is.

Discrimination is multifaceted. It is not only present in State or public sectors but also in the society as general. Discrimination has affected people of different communities such as people of Asian origin, Roma, African origin, Aboriginals, or Indigenous people. People belonging to different cultures and religious origins or those with disability, and other health conditions such as HIV or AIDS have also been subjected to discrimination. Discrimination on the basis of gender is also very common. Woman, in particular, are more susceptible to abuse and other hardships. This made the adoption of the principle of non- discrimination in not only International treaties but also in regional treaties a necessity. Legal protections against prejudice at the worldwide platform have made significant progress in recent years, but studies from all across the globe show that these measures have not eliminated discrimination altogether. In addition to state and public entities, discrimination may be seen in the broader civil society as well.

Before 1945, the principle of non- discrimination was dealt only with the ‘minority treaties’ who had limited scope of action.  The adoption of the UN charter led to recognition of non- discrimination as a part of the International Law. The UN charter has specifically promoted human rights, in particular non- discrimination and equality- as the basic provisions. There are 3 main provisions in the UN Charter which discuss human rights. These include Articles 1(3), 55(c), and 56. The Charter also contains other articles which clearly imply that the fundamental mission of United Nations is to protect the human rights of every citizen. The UDHR (Universal Declaration of Human Rights) has also elaborated on the equal rights prescriptions laid down by the UN Charter. The Preamble of UDHR begins by affirming human solidarity, organizing the inherent dignity, and ensuring that equal rights are enjoyed by all members. Out of the 30 articles, most are in some way concerned with equality and non- discrimination. Article 1 states that all human beings are born free and are equal in rights and dignity. Article 2 states that everyone is entitled to the freedoms and rights that have been set by the Universal Declaration without any kind of discrimination on the basis of race, religion, colour, sex, political, language, national, birth, or any other status. Article 4 states that no one should be held in servitude or slavery and Article 7 states that all individuals are equal in the eyes of law and are entitled to equal protection without any discrimination.    

Non-discrimination in International and Regional treaties

The International Covenant on Civil and Political Rights (ICCPR), 1966 has recognized the dignity of every individual and aims to promote such conditions within the state which allow all individuals to enjoy their civil and political rights. Article 2(1), 26, 20(2), 14(1), 14(3), 25, and 27 promote the principle of discrimination. The International Covenant on Economic, Social, and Cultural Rights (ICESCR) is another multi- lateral treaty that is adopted by the UN General Assembly which aims to ensure that the cultural, economic, and social rights including the right to non- discrimination on the basis of religion, colour, race, language, sex, or on the basis of other status are promoted in the society. The Article 14 of European Convention on Human Rights also aims to prohibit discrimination on any grounds of sex, language, religion, race, political, national, social, or other origin. 

The African Charter on Human and Peoples’ Rights, 1981 is another regional instrument that upholds the principle of non- discrimination in Article 2 which states that each individual is entitled to enjoy freedoms and rights that are recognized and guaranteed in the UN Charter without experiencing any discrimination of any kind such as racial, on the basis of color, ethnicity, group, political preferences, religion, birth, or other opinions. The American Convention on Human Rights, 1969 aims to maintain social justice and personal liberty while ensuring that the essential rights of man are preserved. Article 1 of the American Convention on Human Rights is an obligation to respect rights. It also ensures that all persons have the full freedom to exercise their rights and that they are able to do so without any discrimination.  

The reflection of the principle of non- discrimination in all core UN human rights treaties and regional treaties such as the African Charter on Human and Peoples’ Rights, 1981, American Convention on Human Rights, 1969, European Convention on Human Rights, 1950 makes it an important overarching principle. Discrimination, primarily on the basis of race and gender has been recognized in International forums as an obstacle to the achievement of fairness and equality. Many marginalized black women have always faced discrimination. UN conferences on women have acknowledged in its series of conferences the intersection of discrimination. Such as in the Beijing Platform for Action document and the ‘Outcome Document’, attention has been drawn to understand the desire for the existence of discrimination in multiple forms and their impact on women.

The International Court of Justice (ICJ) has also given customary status to racial and gender discrimination. In 2008, the ICJ had a case that was culminated in the year 2011 on the ‘Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation). In this case, proceedings were instituted before the court by the Republic of Georgia against the Russian Federation in relation to its action around and on the territory of Georgia that was in breach of CERD. CERD or The Convention on the Elimination of All Forms of Racial Discrimination, 1966 is one of the first treaties on human rights that has been adopted by the UN. By signing and ratifying CERD, countries become legally bound and obligated to ensure that non- discrimination and equality are promoted and protected while ensuring that all individuals are able to enjoy their human rights in all areas including education, health, housing, access to justice, voting, etc. Georgia had accused Russia for conducting discriminatory acts via its armed forces. The ICJ in its ruling ordered both the countries from refraining from any acts of discrimination and also expected the rights, security of the people to be respected and upholded. 

The significance of non-discrimination in UN Charter and Universal Declaration of Human Rights

Another case introduced to the ICJ on 2018 was the ‘Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), where Qatar held UAE was responsible for violating the Convention on the Elimination of All Forms of Racial Discrimination (CERD). In the judgment made by the ICJ, it stated that the dispute was beyond the scope of CERD and that it did no posses the jurisdiction to entertain the application that was filed by Qatar. 

As mentioned above, the various treaties and ICJ upholds the principle of non- discrimination. It is extremely important to promote non-discrimination; however there may be certain situations where different treatment is justified. The International Law has established criterias that help to determine whether a distinction amounts to discrimination or not. The non- discrimination principle by ensuring that all individuals or groups receive equal treatment irrespective of their status prevents systematic disadvantage of people with certain characteristics. The legal framework of International human rights comprises of international instruments that help in combating specific types of discrimination, which includes discrimination against , indigenous people,  people with disabilities, minorities, religious and racial discrimination, discrimination against women, or discrimination based on gender identity or sexual orientation.

Human rights law’s primary goal is to preserve human dignity. Human rights abuses are frequently committed by private individuals, therefore the responsibility of nations is not limited to limiting government functions, and therefore must expand to at least occasional individual involvement with human and civil rights. The protection of human dignity is the major purpose of human rights treaties, and as such, the idea of usefulness must be given appropriate attention while formulating such accords. However, even if private action undermines the humanitarian law’s aim, the argument for understanding it to encompass successful prosecution is substantial. Private prosecution Equality confirms that humans are born with inherent fairness and self-determination. To be considered equal, one must have the same number of benefits and be treated with the same level of respect as everyone else. Discrimination on the basis or inconsistent enforcement of laws, regulations, and programmes should not be tolerated by the public sector and the same holds true for public officials. The idea of equality necessitates non-discrimination. Ethnicity, race, sexuality, nationality, theology, political views, geographical or social origins, ownership or birth are all protected under the law. Age, nationality, marital status, handicap, location within a country, and sexual orientation are just a few examples of the many factors considered. In order to attain equality, it may be essential to treat individuals in different ways from how they are now treated. This is due to the fact that people’s differences might make it harder for them to exercise their rights independently. The International Covenant on Civil and Political Rights does not prevent discrimination provided the grounds for the distinction are acceptable and realistic and if the goal is to fulfil a meaningful purpose under the Covenant.

The importance of legal protections against discrimination

Non- discrimination is the essence of human rights and is an overarching principle of modern human rights law. There is presence of much evidence that support non- discrimination is the essence of international human rights law. Human rights constitute the moral principles as they are grounded in respect for the inherent dignity and autonomy of the individual. Human rights have become a ‘secular religion’ for the world that is free from transcendental claims. Respect for all individuals with equal dignity does not create any space for discrimination, which makes non- discrimination that foundation of human rights. The principle of non- discrimination has evolved with the society and this is revealed evidently in the International instruments. The UN Charter aims to achieve the progressive goal of equality that mentions language, race, religion, and sex. The Charter of Fundamental Rights of the European Union of 2000 prohibits discrimination on grounds of membership of a national minority, genetic features, political or other opinions, property, age, birth, or disability. In the ‘Minority Schools in Albania’ case, the principle of non- discrimination has been advocated by the Permanent Court of International Justice (PCIJ) to be equivalent to the principle of equality. The Human Rights Committee has also identified ‘non- discrimination’ to constitute a general and a basic principle that relates to the protection of human rights.

As the term implies, discrimination is the practise of treating one individual or group less positively than the next due to their membership in a protected class. ‘Other status’ is banned from being used as a basis for discrimination in addition to those listed in paragraphs 2 and 26. Rather of attempting to define this phrase, the United Nations Human Rights Committee has chosen to use it in a case-by-case manner. Age, citizenship, family status, handicap, location of residency within a country, and sexual orientation are among the statuses that have been determined to constitute forbidden reasons. Prohibited discrimination does not apply to every treatment that varies between individuals or organisations on any of the following reasons. The Committee has gone case by case in assessing what constitutes a “reasonable and objective” standard. When it came to Australia’s airline pilot retirement age, for example, it was found to have a meaningful purpose under the International Covenant on Civil and Political Rights (ICCPR). Being considered very much like another individual regardless of the fact that your situation is unique may also constitute discrimination. To be clear, the Human Rights Act doesn’t really cover every aspect of life; there are many other laws, including the Equality Act 2010, that provide broader protection. What the law does, however, is safeguard you from being subjected to any types of oppression in the exercise of the human rights guaranteed by the European Convention on Human Rights. Every person, as stated in Article 14, is given an equal chance to exercise their rights, as mentioned in the document that inspired it. Protection against discriminatory practices is not included in the Human Rights Act. Prejudice must have affected one or more of the Act’s rights before anyone might very well invoke this privilege.

The reflection of non-discrimination in regional treaties

State governments must guarantee that private people comply with certain of the Conventions’ rules, or at the very least, take efforts to preserve the Conventions’ constitutional protections from private interference. This is the meaning of Article 2(1) of the ICCPR. According to the European Court of Human Rights (ECHR), nations must comply with the ECHR by enacting legislation that regulates some aspects of private relationships between persons. On both the applicant’s daughter and his own, an Article 8 European Convention right to respect for private life was breached, and Article 8 stipulated that parents have recourse if their children are perpetrators of physical abuse. Consider the connection between human rights violations and terrorist attacks as a starting point. Those who engage in criminal activity face the full force of international law. As a consequence, these norms are contradictory. Non-state actors, as well as states, are expected to abide by the standards involved and to intervene to halt terrorist activities and punish or repatriate the perpetrators.

Conclusion:

As a result of the foregoing essay, it can be concluded that all people should be treated equally as human beings because of their intrinsic worth. Human rights rules state that no one should be discriminated against. Legislation aimed at protecting and promoting human dignity is the primary goal of human rights. Private individuals often commit human rights violations. Legal protections against discrimination have made significant progress in recent decades, yet these regulations have not eliminated discrimination altogether. Prejudice may be prevalent outside of government and public organisations as well. The constitutional ideas of equality and non-discrimination form the foundation of global human rights legislation and declarations. This does not mean, however, that international agreements against discrimination have realised their full potential. Discrimination against members of marginalised groups is on the rise, but at varying rates throughout the world. Equal rights rhetoric has argued that “everyone” is subject to the established rights of the international community, which allegedly originate from the intrinsic moral worth of all people. There must be no conception of neutrality in human rights in order to prevent establishing this integrative ideal. Disadvantaged populations have fought back against marginalisation in part due to the multiculturalist concept. Equality or emancipation from oppression, tyranny, and exploitation has been a long-running topic.

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