Real politick is also relevant because the Committee as in the Avellanal case will be more prone to interfere with states with bad human rights protection records as opposed to those states which have good ones , whose justifications they are more likely to accept. I now move to the second part of Aristotle's claim, the more controversial point that non-discrimination involves more than treating everyone the same, equality does not necessarily mean identical treatment for every one.
Practising de jure equality will not necessarily result in de facto equality. If two people start off in incomparable positions then treating them similarly will merely perpetuate this and further accentuate the differences because to ignore relevant differences would be to implicitly discriminate.
This acknowledgment that people can be from the outset in disadvantageous position to enjoy rights was acknowledged with the creation in 1947 of the Sub-commission on prevention of discrimination of minorities who in 1950 submitted an article for the protection of minorities which was eventually accepted as Article 27 of the Civil and Political Covenant: ' in those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right , in community with the other members of their group, to enjoy their own culture, to profess and practice their religion, or to use their own language. ' Thus it was acknowledged that special measures to protect the minorities were the necessary partner for the prevention of discrimination.
In a General Comment on non-discrimination the Committee stated that 'the principle of equality sometimes requires state parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. ' Though such special measures are only consistent with the principle of non -discrimination if they are applied with the consent of the members of the group, undertaken with the sole purpose of achieving equality, and to be discontinued when the goal is achieved not to result in the maintenance of unequal or separate standards. This is the criteria derived from The Racial Discrimination Convention and The Women's Discrimination Convention which contains express definitions on special measures, affirmative action.
So in the Marckx case the Court said that the state had positive obligations to respect family life by in this case providing domestic legislation which allowed for a child's integration into his family, which the contemporaneous system which had different rules governing the rights of inheritance of illegitimate children did not. Similarly in X& Y v The Netherlands the European Court said that the failure for there to be a criminal law provision whish would allow a mentally handicapped child to issue proceedings in the event of her sexual assault was a breach of her Art 8 rights. The Netherlands were obliged to provide the means of ensuring Art 8 right to private and family life was upheld. The recognition of affirmative action is not only apparent in the case law but in national authorities policies who recognise that de facto equality cannot be achieved without affirmative action to favour the person or group in the poorer position.
Certain Scandinavian employment practices favour women or the access to higher education system in Australia which promoted for the previously under represented indigenous peoples. A state may need to implement affirmative action in order to fulfil its duty to respect equality. The inherent idea is that human rights are more than negative they carry also positive obligations on the state to realise them. In my belief the more relevant question is not can there be an intelligible non discrimination principle which includes affirmative action but, can such affirmative action policies work in practice? Will a policy of preference remedy the often social causes that cause the inequality in the first instance? Is it not like putting a plaster on a wound that has not been cleaned yet?
If you achieve de facto equality for minorities but it has no merit in the eyes of the majority 'equals' because they see it as artifice and unfair to them, does that not instead perpetuate differences? This can be seen in the U. S. A where in 1998 a ban on the use of affirmative action in higher education went into effect in California with the result that UC Berkeley had a 61% drop in admissions of African American, Latino and Native Indian students and UCLA had a 36% decline. The ban on affirmative action in California, a response to pressure that an acknowledgment of race in the admissions procedure was unconstitutional because it preferred advantageously a class of people. So yes it is intelligible that a human right standard ask simultaneously for alike and differential treatment but how easily this will be achieved is debatable.