Areas of Activity and Restricted Applicability

The reach of some prohibitions on discrimination is necessarily limited by their application only to persons belonging to specified categories, namely, children, the disabled, European Union nationals, indigenous and tribal persons, members of a national minority or of a racial group, migrant workers, refugees, the stateless, victims of trafficking and women. Moreover the focus of certain treaties will only be on treatment in a particular context such as access to information, education, employment, politics and sport.

Other prohibitions are limited to discrimination affecting a particular group of rights and generally speaking if the impugned treatment does not affect one of those rights then, no matter how objectionable the difference in treatment, protection will not be afforded by the concerned guarantee.²¹⁶⁹ However, as the European Court of Human Rights has shown, there is a scope for mitigating the effect of such a limitation by finding impermissible discriminatory treatment that affects matters falling within the penumbra of a right. While such matters would not be protected by the substantive right itself, the presence of discrimination enables a complaint about the treatment to be upheld through reliance on the two provisions – the substantive guarantee and the prohibition on discrimination – taken together.²¹⁷⁰ There is no reason why this approach is not emulated in the case of similar prohibitions.

The reach of the general prohibitions on discrimination²¹⁷¹ will, however, be to all aspects of life that have a public dimension in the sense of the impugned treatment, being dependent on the law and legal institutions in order for it to be applied or enforced.

Only three treaties restrict the benefit of the prohibition of discrimination to those who are the nationals of the country concerned. One authorises developing countries to determine the extent to which they would guarantee certain economic rights to non-nationals.²¹⁷² A second does so to the extent of allowing restrictions to be imposed on the exercise by aliens of the rights to freedom of assembly, association and expression²¹⁷³ but this has in practice been given a narrow construction.²¹⁷⁴ The third excludes from the definition of racial discrimination distinctions, exclusions, restrictions or preferences between citizens and non-citizens.²¹⁷⁵ However, the last provision cannot be used as an excuse for not performing obligations under other human rights treaties, which are generally applicable to non-nationals.²¹⁷⁶

In addition to these restrictions it should be noted that the prohibitions on discrimination in the Revised Social Charter are only applicable to nationals of other Contracting Parties lawfully resident or working regularly within the territory of the Contracting Party concerned.²¹⁷⁷