MINELRES: ERT: General Comment on Non-discrimination issued by UN Treaty Body

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Wed Jun 10 16:50:42 2009


Original sender: Equal Rights Trust
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UN Committee on Economic, Social and Cultural Rights adopts General
Comment on Non-Discrimination  
 
London, 29 May 2009  
 
The UN Committee on Economic, Social and Cultural Rights (the Committee)
adopted General Comment No. 20 on Non-Discrimination in Economic, Social
and Cultural Rights at its 42nd session, which took place from 4 – 22
May 2009. The General Comment is the Committee’s interpretation of
Article 2(2) of the International Covenant on Economic, Social and
Cultural Rights (ICESCR). Article 2(2) states: 

“The States Parties to the present Covenant undertake to guarantee that
the rights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth
or other status.” 

The General Comment reiterates that discrimination undermines the
fulfilment of economic, social and cultural rights for a significant
proportion of the world’s population and that “[n]on-discrimination and
equality are fundamental components of international human rights law
and essential to the exercise and enjoyment of economic, social and
cultural rights.” 

The General Comment contains many progressive elements, the most
important of which are: 

•  An interpretation of the content and scope of the grounds of
discrimination which are prohibited by Article 2(2). In addition to the
grounds which are explicitly expressed in the text of Article 2(2), the
Committee emphasises that the nature of discrimination varies according
to context and evolves over time, and that “a flexible approach to the
ground of “other status” is thus needed to capture other forms” of
discrimination. The Committee therefore provides a non-exhaustive list
of “other grounds” of discrimination prohibited by Article 2(2),
including:  disability, age, nationality (covering non-nationals such as
refugees, asylum seekers and stateless persons, migrant workers and
victims of international trafficking), marital and family status, sexual
orientation and gender identity, health status, place of residence, and
economic and social situation;  

•  An affirmation that incitement to discrimination and harassment
constitute discrimination under Article 2(2);

•  Definitions of direct and indirect discrimination for the purposes of
Article 2(2);

•  A recognition that multiple/cumulative discrimination has “a unique
and specific impact on individuals and merits particular consideration
and remedying”; 

•  Confirmation that States Parties “must adopt measures, which should
include legislation, to ensure that individuals and entities in the
private sphere do not discriminate on prohibited grounds”; 

•  A reiteration that national legislation, strategies, policies and
plans should provide for mechanisms and institutions that effectively
address the individual and structural nature of the harm caused by
discrimination in the field of economic, social and cultural rights;

•  An affirmation that States Parties have the obligation “to monitor
effectively the implementation of measures to comply with Article 2(2)”
and the recommendation upon State Parties that “[n]ational strategies,
policies and plans should use appropriate indicators and benchmarks,
disaggregated on the basis of prohibited grounds of discrimination”. 

On 13 December 2008, The Equal Rights Trust submitted written comments
to the Committee based on the Declaration of Principles on Equality.
Many of the recommendations made in the ERT submission in order to
strengthen the General Comment have been incorporated into the final
text by the Committee. 

Regrettably, it appears that on several occasions, notably regarding the
notions of formal and substantive equality, the General Comment uses
complex and complicated language to frame concepts which have been well
established in simpler and more accurate terms by earlier human rights
jurisprudence. Such terminology may benefit from further clarification
and elaboration by the Committee. 

To read General Comment No. 20, click here:
http://www2.ohchr.org/english/bodies/cescr/docs/gc/E.C.12.GC.20.doc . 

To see the Declaration of Principles on Equality, click here:
http://www.equalrightstrust.org/ertdocumentbank/Pages%20from%20Declaration%
20perfect%20principle.pdf