288
i n t e r nat i o na l l aw
opinion, national or social origin, property, birth or other status’.
130
Arti-
cle 26 stipulates that all persons are equal before the law and thus, ‘the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status’.
131
The UN Human Rights Commit-
tee established under this Covenant
132
has noted in its General Comment
18 on Non-Discrimination
133
that non-discrimination ‘constitutes a ba-
sic and general principle relating to the protection of human rights’. The
Committee, while adopting the definition of the term ‘discrimination’ as
used in the Racial Discrimination and Women’s Discrimination Conven-
tions, concludes that it should be understood to imply any distinction,
exclusion, restriction or preference which is based on any ground such as
race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status and which has the purpose
or effect of nullifying or impairing the recognition, enjoyment or exercise
by all persons, on an equal footing, of all rights and freedoms.
The principle of non-discrimination requires the establishment of
equality in fact as well as formal equality in law. As the Permanent Court
of International Justice noted in the
Minority Schools in Albania
case,
134
‘equality in law precludes discrimination of any kind; whereas equality
in fact may involve the necessity of different treatment in order to attain
a result which establishes an equilibrium between different situations’.
135
The appropriate test of acceptable differentiation in such circumstances
will centre upon what is just or reasonable
136
or objectively and reason-
ably justified.
137
The application of equality in fact may also require the
130
See also, for example, articles 2(2) and 3 of the International Covenant on Economic, Social
and Cultural Rights, 1966. See M. C. Craven,
The International Covenant on Economic,
Social and Cultural Rights
, Oxford, 1995, chapter 4, and see further below, p. 308.
131
Note that this provision constitutes an autonomous or free-standing principle, whereas
article 2(1) of that Covenant and articles 2 of the Universal Declaration of Human Rights,
14 of the European Convention on Human Rights and 2(1) of the Convention on the
Rights of the Child prohibit discrimination in the context of specific rights and freedoms
laid down in the instrument in question: see Bayefsky, ‘Equality’, pp. 3–4, and the Human
Rights Committee’s General Comment on Non-Discrimination, paragraph 12.
132
See further below, p. 314.
133
Adopted on 9 November 1989, CCPR/C/Rev.1/Add.1.
134
PCIJ, Series A/B, No. 64, p. 19 (1935); 8 AD, pp. 386, 389–90.
135
See also the Human Rights Committee’s General Comment on Non-Discrimination,
paragraph 8.
136
See Judge Tanaka’s Dissenting Opinion in the
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