'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.

Authors Avatar

‘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.

Join now!

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 ...

This is a preview of the whole essay