Grounds

The broadest list of prohibited grounds of discrimination in any European or global treaty is to be found in the International Convention on the Elimination of All Forms of Racial Discrimination, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. This Convention prohibits discrimination based on grounds “such as sex, race, colour, sex, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status”.²¹⁵⁵ Many other instruments have most of these grounds and some refer to grounds which are not included amongst them, notably disability,²¹⁵⁶ health²¹⁵⁷ and association with a national minority.²¹⁵⁸ One Convention even specifies that the applicable grounds or attributes can be those of the parent as much as the child affected by a measure.²¹⁵⁹

However, more important perhaps is the question of whether the listing is illustrative or exhaustive. There are, of course, some treaties clearly limited to specific grounds of discrimination because that is their very focus, notably those concerned with gender, indigenous and tribal peoples and race, while those concerned with refugees and stateless persons only proscribe discrimination on account of race, religion or country of origin. Even those limited grounds might be wider than first thought. Thus the understanding of the term ‘race’ in one instrument²¹⁶⁰ is defined to include not only colour and national or ethnic origin as mentioned above but also descent, and the Committee on the Elimination of Racial Discrimination has taken the view that identification of individuals as being members of a particular racial or ethnic group or groups shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned.²¹⁶¹ It is probable that both approaches to defining race would be taken by the bodies responsible for interpreting this concept in other instruments. Indeed interpretation of itemised terms can widen their scope – ‘sex’, e.g., has been interpreted to cover ‘sexual orientation’²¹⁶² but more importantly most lists of grounds ensure that they are not exhaustive by prefacing them with the phrase ‘such as’ and ending with the reference to ‘other status’. Certainly the latter has been found to extend to age,²¹⁶³ height,²¹⁶⁴ past employment,²¹⁶⁵ sexual orientation,²¹⁶⁶ and could possibly extend to persons who are internally displaced²¹⁶⁷ or even to those whose immigration status is irregular. In principle such lists are capable of extending to any group of persons with a shared attribute, inherent or chosen, and they should not, therefore, be construed too strictly.

Under European Union law the prohibited grounds of discrimination are generally limited to age, disability, gender, nationality, racial or ethnic origin, religion or belief and sexual orientation. However, the European Union’s Charter of Fundamental Rights seeks to prohibit discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.²¹⁶⁸ When the Charter enters into force it will operate as a constraint on measures adopted by European Union institutions and may be used in assessing the acceptability of various national implementing measures.