'A coherent human rights standard cannot simultaneously require that people should be treated alike and that they be treated differently'. Discuss this statement with respect to the application of non-discrimination in international human rights law To discriminate is to treat differently, it follows therefore that that non-discrimination as a principle should be one that ensures there is some consistent indistinguishable treatment of people. It seems therefore contradictory that that such a principle should then advocate concurrently differential treatment. The quote postulates that not only is it contradictory but also intelligible.
There are several treaties that contain provisions against discrimination, significantly: Article 26 of the Covenant on Civil and Political Rights states that 'All persons are equal before the law and are entitled with out any discrimination to the equal protection of the law. In this respect the law shall prohibit any discrimination and guarantee to all persons, equal and effective protection against discrimination on ant ground such race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Similarly Article 14 of the European Convention on Human Rights states: 'the enjoyment of the rights and freedoms set forth in the Convention shall be secured with out discrimination on any ground such as sex, race, colour, language, religion, political ,or other opinion, national or social origin, association with a national minority, property, birth or other status'. I propose that it is the superficial notion of discrimination explicit in the above provisions that have been pre-supposed to be the entirety of the meaning of non-discrimination
In this essay I argue that a somewhat expanded vision of non-discrimination needs to be enunciated in order to embrace the concept of differential treatment in a non-discrimination principle expertly put by Aristotle , there is cause for complaint 'when either equals have and are awarded unequal shares , or unequals equal shares'. The principles of non-discrimination contained in the above provisions are concerned with uniformity of treatment and thus correspond to the first part of Aristotle's claim..
To talk of treating people alike in the discriminatory context is to express the notion that people should not be unfairly distinguished from one another. If a distinction is made between people which is valid then discrimination has not taken place otherwise the reverse is true. The European Court in the Belgian Linguistics case proposed that a non-discriminatory distinction must have, an objective and reasonable justification and there must be a reasonable relationship of proportionality between the aim and the means employed to attain it .
In Lithgow and others v UK, this guidance was added to, it was said that 'discrimination involves treating differently those whose circumstances are otherwise analogous. Thus in Gueye v France the Human Rights Committee would not accept the difference in treatment of former members of the French armed officers of Senegalese nationality as opposed to French nationality in regard to pension rights.
The Committee did not consider the criteria for differentiation objective or reasonable, as essentially the soldiers despite the nationality difference were in analogous positions as former members of the French armed forces, there was no valid reason to deny them their pension rights. Similarly in BroeksvThe Netherlands The Committee decided that the differentiation made between a married man and a married woman in terms of their ability to claim unemployment benefit, in that the married woman had to prove that she was the Bread winner and the husband did no, was not reasonable.
They were both married and thus should both have equal access to social security benefit. Also in Ato Del Avellanal v Peru a Peruvian woman submitted a communication to the Human Rights Committee claiming that she was denied access to justice because of her gender. Under Peruvian law, only the husband may appear in court if matters concerning matrimonial property are at issue. Consequently The Committee decided that their was discrimination because women in Peru were denied equality before the courts.
These cases highlight in Aristotle's words that 'justice considers that persons who are equal should have assigned to them equal things'. Sadly however The Committee does not always deliver such justice. In Johnston & Others v Ireland the European Court failed to see that their was a relevant analogy between Irish people who had gone abroad to get a divorce which was then recognised in Ireland and those in Ireland who could not get a recognised divorce.
The analogy being that they are both Irish citizens who want a recognised divorce. Injustice was also apparent in M. J. G v The Netherlands where The Committee denied that their was any discrimination on the basis that plaintiff was treated in the same way as all other people in his class as opposed to looking at the inherent problem with in the legislation that allowed their to be a difference in the ability of soldiers to appeal against a summons verses civilians.
Vos v The Netherlands was also a blatantly unfair decision, in which the Committee accepted the reasons that the Government provided to justify the existence of legislation which provided that a disabled man whose former wife dies retains the right to disability allowance but a disabled woman whose former husband dies loses the right to disability allowance and can only claim a widows pension which is less. Why in these cases has their been a failure to examine accurately the purported criteria?
Essentially there will be limits to when the European Court at least, will recognise the principle of non-discrimination because of the concept of a margin of appreciation. The Court has said that 'The Contracting States enjoy a certain margin of appreciation is assessing to what extent differences in otherwise similar situations justify a different treatment in law'. Therefore the pronouncement of non-discrimination in a case will depend very much on how much deference the European Court will accord the national authorities.
This is a significant restraint because it means that pronouncements of non-discrimination will not always be predictable or consistent dependent only on the 'circumstances, the subject-matter and its background'. There is some ambiguity on the above criteria because there no real detailed explication of what will be relevant. Thus the margin of appreciation is constrained by very little except in those cases of discrimination based on sex or illegitimacy.