Sources of the Prohibition

Global instruments concerning the prohibition of discrimination comprise both general provisions in treaties guaranteeing a wide range of human rights and freedoms and treaties or provisions in them concerned specifically with discrimination either in relation to a specific group or in a specific context.

The former are primarily in the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights. Thus both include undertakings to guarantee no discrimination generally in respect of all the enumerated rights and to ensure the equal rights of men and women to the enjoyment of all the rights set forth in these Covenants,²¹³³ and the International Covenant on Civil and Political Rights also specifically guarantees equality before the law and requires the prohibition of discrimination and effective protection against it.²¹³⁴ However, the latter instrument also makes special provision for the protection of children against discrimination with regard to measures of protection required by a child’s status as a minor.²¹³⁵

The more specific global instruments, i.e., either solely concerned with the prohibition of discrimination or containing provisions with that object, comprise the Convention against Discrimination in Education, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Political Rights of Women, the Convention on the Rights of Persons with Disabilities,²¹³⁶ the Convention on the Rights of the Child,²¹³⁷ the Convention on the Suppression and Punishment of the Crime of Apartheid, the Convention relating to the Status of Refugees,²¹³⁸ the Convention relating to the Status of Stateless Persons,²¹³⁹ the ILO’s Convention (No. 100) concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, the ILO’s Convention (No. 111) concerning Discrimination in Respect of Employment and Occupation, the ILO’s Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries,²¹⁴⁰ the International Convention against Apartheid in Sports, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families²¹⁴¹ and the Vocational Rehabilitation and Employment (Disabled Persons) Convention 1983 (ILO Convention No. 159).²¹⁴²

In addition it should be noted that the ILO’s Convention (No. 105) concerning the Abolition of Forced Labour requires the suppression of forced labour as a means of racial, social, national or religious discrimination²¹⁴³ and certain treaties specifically provide that non-citizens should have in respect of certain matters the same entitlement as a national, notably in the Convention relating to the Status of Refugees, the Convention relating to the Status of Stateless Persons, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

At the European level there is a similar distinction to that at the global as regards the character of the treaties prohibiting discrimination whereas in the European Union the adoption of laws is more significant than treaty provisions for the prohibition of discrimination. No treaty or other legal obligations have been adopted under the auspices of the Organization for Security and Co- operation in Europe.

The ECHR prohibits discrimination in relation to the enumerated rights and freedoms²¹⁴⁴ but has been supplemented by a provision guaranteeing equality of rights and responsibilities for spouses²¹⁴⁵ and a general guarantee against discrimination²¹⁴⁶. While the only reference to discrimination in the European Social Charter is in its Preamble, the European Social Charter (Revised) has both a right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex and a general guarantee against discrimination.²¹⁴⁷ There is also specific protection against discrimination in the Framework Convention for the Protection of National Minorities,²¹⁴⁸ the Council of Europe Convention on Action against Trafficking in Human Beings²¹⁴⁹ and the Council of Europe Convention on Access to Official Documents, ²¹⁵⁰as well as protection against the promotion of discrimination in the Additional Protocol to the Convention on cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems.

The European Union has prohibitions on discrimination both in its constitutive treaties and in Directives that are also binding on its member states. They relate to forms of discrimination based on nationality between workers of member states as regards employment, remuneration and other conditions of work and employment, securing equality between men and women with regard to labour market opportunities and treatment at work and the requirement of equal pay for male and female workers for equal work or work of equal value.²¹⁵¹ The power to issue Directives is to take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation²¹⁵² and one Directive has been adopted pursuant to it.²¹⁵³ In addition there are several Directives aiming to achieve equality between men and women.²¹⁵⁴