Introduction

International concern about discrimination is now longstanding. Thus, guarantees of equality were a feature of the Minority Treaties concluded between the League of Nations and states established after the First World War. Such a guarantee was also imposed as a condition on the admission of some other states to the League of Nations. A conception of equality also underpinned the adoption of the Slavery Convention in 1926, even though this was not expressly articulated in it. Despite this, however, the elaboration of international and European norms and mechanisms to tackle discrimination and promote equality has primarily been a post-Second World War phenomenon.

The starting point for action against discrimination in the present international legal order is the stipulation in the Charter of the United Nations in 1945 of the promotion and encouragement of respect for human rights and for fundamental freedoms for all without distinction as one of the purposes of the organisation and of the promotion of universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as a specific duty for the organization.²¹²² This has provided the legal basis in succeeding years for both elaborating and adopting a wide range of treaties – some affording a general guarantee against discrimination and others dealing with its manifestation in particular forms – and the numerous efforts made by the bodies established by the Charter or under its authority to address the problem of discrimination, whether generally or in specific countries.

The objective of tackling equality is also a key feature of the mandates that have been prescribed for the specialised agencies of the United Nations. Thus “recognition of the principle of equal remuneration for work of equal value” is an objective of the International Labour Organization,²¹²³ it is a function of the United Nations Educational, Scientific and Cultural Organization to collaborate “among the nations to advance the ideal of equality of educational opportunity without regard to race, sex or any distinctions, economic or social”²¹²⁴ and it is a principle guiding the work of the World Health Organization that “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”²¹²⁵

Furthermore the achievement of equality and the proscription of discrimination have been a central part of the commitments made by those belonging to the intergovernmental and supranational organisations established at the European level. Thus every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms,²¹²⁶ to achieve which many more specific standards and mechanisms have been adopted and introduced. Similarly there are numerous undertakings related to equality, tolerance and non-discrimination in the human dimension of the Organization for Security and Co-operation in Europe, together with various implementing measures in respect of them. Within the European Union the promotion of equality between men and women is identified as a task of the European Community and there are also particular treaty commitments and powers relating to such equality.²¹²⁷ Moreover various Directives have been adopted to ensure equality between those who are nationals of the European Union and to proscribe a number of other forms of discrimination.

It is thus not surprising that at least some of the forms of discrimination prohibited in the treaty commitments and other measures already referred to are now also contrary to customary international law. This is most certainly the case with discrimination based on race – which has undoubtedly achieved the status of jus cogens and there is growing support for the view that the prohibition of discrimination based on religion and gender may also be required by customary international law but it is unlikely that the latter prohibits all forms of discrimination. At the same time it should be noted that it has been accepted that discriminatory treatment can attain a level of severity that renders it degrading²¹²⁸ and thus contrary to a norm that is non-derogable at both the global and the European level.²¹²⁹

The prohibition of discrimination is moreover closely linked to the need to maintain pluralism as a part of the equally strong commitment at the global and regional level to democracy.²¹³⁰

Maintaining pluralism and thus democracy certainly necessitates tolerance of the expression of views that offend, shock and disturb but not of those that promote hatred between sections of society.²¹³¹ It may also be necessary to place restrictions on other freedoms in order to reconcile the interests of different groups in a society and thereby ensure that everyone’s identity and beliefs are respected. In particular, freedoms cannot be used to weaken or destroy the ideals and values of a democratic society such as through promoting the introduction into all legal relationships of a distinction between individuals grounded on personal attributes such as an individual’s gender, race, religion or belief, categorising everyone according to these attributes and allowing them rights and freedoms only on this basis. This would be unacceptable since it would infringe on the principle of non-discrimination between individuals as regards their enjoyment of public freedoms, which is one of the fundamental principles of democracy. As the European Court of Human Rights has observed in relation to this approach being espoused with respect to religion, “Such a difference in treatment cannot maintain a fair balance between, on the one hand, the claims of certain religious groups who wish to be governed by their own rules and on the other the interest of society as a whole, which must be based on peace and on tolerance between the various religions and beliefs”.²¹³²