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UN Economic, Social and Cultural
Rights Committee Adopts General Comment 20 on Non-Discrimination: “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”.
________________________________________________________________________
International Covenant on Economic, Social and Cultural Rights
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The Committee on Economic, Social and Cultural Rights (CESCR) is the body of independent experts that monitors implementation of the International Covenant on Economic, Social and Cultural Rights by its States parties.
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Direct Link to UN ESCR Committee
General Comment 20 - Non-Discrimination
In
May 2009, the Committee on Economic, Social and Cultural Rights
adopted General Comment No. 20: Non-Discrimination in Economic,
Social and Cultural Rights, an authoritative interpretation of the
meaning and scope of the right to non-discrimination in article 2(2)
of the International Covenant on Economic, Social and Cultural
Rights. Article 2(2) of ICESCR requires States Parties "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." General Comment No. 20 examines
the scope of state obligations under article 2(2), the grounds of
discrimination that it prohibits, and the measures that States
Parties should adopt to ensure its national implementation.
All General Comments of UN Economic,
Social, & Cultural Rights Committee:
UNITED NATIONS |
|
E |
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Economic and Social Council |
Distr. GENERAL E/C.12/GC/20 10 June 2009 Original: ENGLISH |
AND CULTURAL RIGHTS
Forty-second session
Item 3 of the provisional agenda
General Comment No. 20
Non-Discrimination in
Economic, Social and Cultural Rights (art. 2, para. 2)
1.
Discrimination
undermines the fulfilment of economic, social and cultural rights for a
significant proportion of the world’s population. Economic growth has not, in
itself, led to sustainable development and individuals and groups of
individuals continue to face socio-economic inequality, often because of
entrenched historical and contemporary forms of discrimination.
2.
Non-discrimination and
equality are fundamental components of international human rights law and
essential to the exercise and enjoyment of economic, social and cultural
rights. Article 2(2) of the International Covenant on Economic, Social and
Cultural Rights (‘Covenant’) obliges each State Party “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”.
3.
The principles of
non-discrimination and equality are recognised throughout the Covenant. The
Preamble stresses the “equal and inalienable rights of all” and the Covenant
expressly recognises the rights of “everyone” to the various Covenant rights
such as, inter alia, the right to work, just and favourable conditions of work,
trade union freedoms, social security, an adequate standard of living, health
and education and participation in cultural life.
4.
The Covenant also
explicitly mentions the principles of non-discrimination and equality with
respect to some individual rights. Article 3 requires States to undertake to
ensure the equal right of men and women to enjoy the Covenant rights and
Article 7 includes the “right to equal remuneration for work of equal value”
and “equal opportunity for everyone to be promoted” in employment. Article 10
stipulates that, inter alia, mothers should be accorded special protection
during a reasonable period before and after childbirth and that special
measures of protection and assistance should be taken for children and young
persons without discrimination. Article 13 recognizes that “primary education
shall be compulsory and available free for all” and provides that “higher
education shall be made equally accessible to all”.
5.
The preamble,
Articles 1(3) and 55 of the UN Charter and Article 2(1) of the Universal
Declaration of Human Rights prohibit discrimination in the enjoyment of
economic, social and cultural rights. International treaties on racial
discrimination, discrimination against women and the rights of refugees,
stateless persons, children, migrant workers and members of their families and
persons with disabilities include the exercise of economic, social and cultural
rights,[1][1] while other treaties require the
elimination of discrimination in specific fields, such as employment and
education.[2][2] In addition to the common
provision on equality and non-discrimination in both Covenants, ICESCR and the
International Covenant on Civil and Political Rights, Article 26 of ICCPR
contains an independent guarantee of equal and effective protection before and
of the law.[3][3]
6.
In previous General
Comments, the Committee has considered the application of the principle of
non-discrimination to specific Covenant rights relating to housing, food,
education, health, water, author’s rights, work and social security.[4][4] Moreover, General Comment No. 16
focuses on State parties’ obligations under Article 3 of the Covenant to ensure
equal rights of men and women to the enjoyment of all Covenant rights, while
General Comments Nos. 5 and 6 respectively concern the rights of persons with
disabilities and older persons.[5][5] The present General Comment aims
to clarify the Committee’s understanding of the provisions of Article 2(2),
including the scope of State obligations (Part II), the prohibited grounds of
discrimination (Part III), and national implementation (Part IV).
7.
Non-discrimination is
an immediate and cross-cutting obligation in the Covenant. Article 2(2)
requires States parties to guarantee non-discrimination in the exercise of each
of the economic, social and cultural rights enshrined in the Covenant and can
only be applied in conjunction with these rights. It is to be noted that
discrimination constitutes any distinction, exclusion, restriction or
preference or other differential treatment that is directly or indirectly based
on the prohibited grounds of discrimination and which has the intention or
effect of nullifying or impairing the recognition, enjoyment or exercise, on an
equal footing, of Covenant rights.[6][6] Discrimination also includes
incitement to discriminate and harassment.
8.
In order for States
parties to “guarantee” that the Covenant rights will be exercised without
discrimination of any kind, discrimination must be eliminated both formally and
substantively:[7][7]
(a) Formal discrimination: Eliminating formal discrimination requires ensuring that a State’s constitution, laws and policy documents do not discriminate on prohibited grounds; for example, laws should not deny equal social security benefits to women on the basis of their marital status.
(b) Substantive discrimination: Merely addressing formal discrimination will not ensure substantive equality as envisaged and defined by Article 2(2).[8][8] The effective enjoyment of Covenant rights is often influenced by whether a person is a member of a group characterized by the prohibited grounds of discrimination. Eliminating discrimination in practice requires paying sufficient attention to groups of individuals which suffer historical or persistent prejudice instead of merely comparing the formal treatment of individuals in similar situations. States parties must therefore immediately adopt the necessary measures to prevent, diminish and eliminate the conditions and attitudes which cause or perpetuate substantive or de facto discrimination. For example, ensuring that all individuals have equal access to adequate housing, water and sanitation will help to overcome discrimination against women and girl children and persons living in informal settlements and rural areas.
9. In order to eliminate substantive discrimination, States parties may be, and in some cases are, under an obligation to adopt special measures to attenuate or suppress conditions that perpetuate discrimination. Such measures are legitimate to the extent that they represent reasonable, objective and proportional means to redress de facto discrimination and are discontinued when substantive equality has been sustainably achieved. Such positive measures may exceptionally, however, need to be of a permanent nature, such as interpretation services for linguistic minorities and reasonable accommodation of persons with sensory impairments in accessing health care facilities.
10. Both direct and indirect forms of differential treatment can amount to discrimination under Article 2(2) of the Covenant:
(a) Direct discrimination occurs when
an individual is treated less favourably than another person in a similar
situation for a reason related to a prohibited ground; e.g. where employment in
educational or cultural institutions or membership of a trade union is based on
the political opinions of applicants or employees. Direct discrimination also
includes detrimental acts or omissions on the basis of prohibited grounds where
there is no comparable similar situation (e.g. the case of a woman who is
pregnant).
(b) Indirect
discrimination refers to laws, policies or practices which appear neutral
at face value, but have a disproportionate impact on the exercise of Covenant
rights as distinguished by prohibited grounds of discrimination. For instance,
requiring a birth registration certificate for school enrolment may
discriminate against ethnic minorities or non-nationals who do not possess, or
have been denied, such certificates.
11.
Private sphere. Discrimination is frequently
encountered in families, workplaces, and other sectors of society. For example,
actors in the private housing sector (e.g. private landlords, credit providers
and public housing providers) may directly or indirectly deny access to housing
or mortgages on the basis of ethnicity, marital status, disability or sexual
orientation while some families may refuse to send girl children to school.
States parties must therefore adopt measures, which should include legislation,
to ensure that individuals and entities in the private sphere do not
discriminate on prohibited grounds.
12.
Systemic
discrimination. The
Committee has regularly found that discrimination against some groups is
pervasive and persistent and deeply entrenched in social behaviour and
organisation, often involving unchallenged or indirect discrimination. Such
systemic discrimination can be understood as legal rules, policies, practices
or predominant cultural attitudes in either the public or private sector which
create relative disadvantages for some groups, and privileges for other groups.
13.
Permissible scope of
differential treatment. Differential treatment based on prohibited grounds will be viewed as
discriminatory unless the justification for differentiation is reasonable and
objective. This will include an assessment as to whether the aim and effects of
the measures or omissions are legitimate, compatible with the nature of the
Covenant rights and solely for the purpose of promoting the general welfare in
a democratic society. In addition, there must be a clear and reasonable
relationship of proportionality between the aim sought to be realised and the
measures or omissions and their effects. A failure to remove differential
treatment on the basis of a lack of available resources is not an objective and
reasonable justification unless every effort has been made to use all resources
that are at the State party’s disposition in an effort to address and eliminate
the discrimination, as a matter of priority.
14.
Under international
law, a failure to act in good faith to comply with the obligation in Article
2(2) to guarantee that the rights enunciated in the Covenant will be exercised
without discrimination amounts to a violation. Covenant rights can be violated
through the direct action or omission by States parties, including through
their institutions or agencies at the national and local level. States parties
should also ensure that they refrain from discriminatory practices in
international cooperation and assistance and take steps to ensure that all
actors under their jurisdiction do likewise.
15.
Article 2(2) lists the
prohibited grounds of discrimination as “race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status”. The inclusion of “other status” indicates that this list is not
exhaustive and other grounds may be incorporated in this category. The express grounds and a number of implied
grounds under “other status” are discussed below. The examples of differential
treatment presented in this Section are merely illustrative and they are not
intended to represent the full scope of possible discriminatory treatment under
the relevant prohibited ground, nor a conclusive finding that such differential
treatment will amount to discrimination in every situation.
16.
Membership in a
group. In
determining whether a person is distinguished by one or more of the prohibited
grounds, identification shall, if no justification exists to the contrary, be
based upon self-identification by the
individual concerned. Membership also includes association with a group characterised by one of the prohibited
grounds (e.g. the parent of a child with a disability) or perception by others that an individual is part of such a group
(e.g., a person has a similar skin colour or is a supporter of the rights of a
particular group or a past member of a group).
17.
Multiple
discrimination.[9][9] Some individuals or groups of
individuals face discrimination on more than one of the prohibited grounds, for
example women belonging to an ethnic or religious minority. Such cumulative discrimination has a unique
and specific impact on individuals
and merits particular consideration and remedying.
A. Express grounds
discrimination across a wide range of Covenant rights against indigenous
peoples and ethnic minorities amongst others.
19.
‘Race and colour’. Discrimination on the basis of
‘race and colour’, which includes an individual’s ethnic origin, is prohibited
by the Covenant as well as by other treaties including the International
Convention on the Elimination of Racial Discrimination. The use of the term
‘race’ in the Covenant or the present General Comment does not imply the
acceptance of theories which attempt to determine the existence of separate
human races.[10][10]
20.
Sex. The
Covenant guarantees the equal right of men and women to the enjoyment of
economic, social and cultural rights.[11][11] Since the adoption of the Covenant,
the notion of the prohibited ground ‘sex’ has evolved considerably to cover not
only physiological characteristics
but also the social construction of gender
stereotypes, prejudices and expected roles, which have created obstacles to the
equal fulfilment of economic, social and cultural rights. Thus, the refusal to
hire a woman, on the ground that she might become pregnant, or the allocation
of low-level or part-time jobs to women based on the stereotypical assumption that,
for example, they are unwilling to
commit as much time to their work as men, constitutes discrimination. Refusal
to grant paternity leave may also amount to discrimination against men.
21.
Language. Discrimination on the basis of
language or regional accent is often closely linked to unequal treatment on the
basis of national or ethnic origin. Language barriers can hinder the enjoyment
of many Covenant rights, including the right to participate in cultural life as
guaranteed by Article 15 of the Covenant. Therefore, information about public
services and goods, for example, should be available, as far as possible, also
in languages spoken by minorities and States parties should ensure that any
language requirements relating to employment and education are based on
reasonable and objective criteria.
22.
Religion. This prohibited ground of
discrimination covers the profession of religion or belief of one’s choice
(including the non-profession of any religion or belief), that may be publicly
or privately manifested in worship, observance, practice and teaching.[12][12] For instance, discrimination arises
when persons belonging to a religious minority are denied equal access to
universities, employment, or health services on the basis of their religion.
23.
Political or other
opinion. Political
and other opinions are often grounds for discriminatory treatment and include
both holding and not-holding, as well as expression of views or membership
within opinion-based associations, trade unions or political parties. Access to
food assistance schemes, for example, must not be made conditional on an
expression of allegiance to a particular political party.
24.
National or social
origin. ‘National
origin’ refers to a person’s State, nation, or place of origin. Due to such
personal circumstances, individuals and groups of individuals may face systemic
discrimination in both the public and private sphere in the exercise of their
Covenant rights.‘Social origin’ refers to a person’s inherited social status,
which is discussed more fully below in the context of ‘property’ status, descent-based discrimination under
‘birth’ and ‘economic and social
status’.[13][13]
25.
Property. Property status, as a prohibited
ground of discrimination, is a broad concept and includes real property (e.g.,
land ownership or tenure) and personal property (e.g., intellectual property,
goods and chattels, and income), or the lack of it. The Committee has
previously commented that Covenant rights, such as access to water services and
protection from forced eviction, should not be made conditional on a person’s
land tenure status, such as living in an informal settlement.[14][14]
26.
Birth. Discrimination based on birth is
prohibited and Article 10(3) specifically states, for example, that special
measures should be taken on behalf of children and young persons “without any
discrimination for reasons of parentage”. Distinctions must therefore not be
made against those who are born out of wedlock, born of stateless parents or
are adopted or constitute the families of such persons. The prohibited ground
of birth also includes descent,
especially on the basis of caste and analogous systems of inherited status.[15][15] States parties should take steps,
for instance, to prevent, prohibit and eliminate discriminatory practices
directed against members of descent-based communities and act against
dissemination of ideas of superiority and inferiority on the basis of descent.
B. Other status[16][16]
27.
The nature of
discrimination varies according to
context and evolves over time. A flexible approach to the ground of “other
status” is thus needed to capture other forms of differential treatment that
cannot be reasonably and objectively justified and are of a comparable nature
to the expressly recognised grounds in Article 2(2). These additional grounds
are commonly recognised when they reflect the experience of social groups that
are vulnerable and have suffered and continue to suffer marginalisation. The
Committee’s General Comments and Concluding Observations have recognised
various other grounds and these are described in more detail below. However,
this list is not intended to be exhaustive. Other possible prohibited grounds
could include the denial of a person’s legal capacity because he or she is in
prison, or is involuntarily interned in a psychiatric institution, or the intersection of two prohibited grounds
of discrimination, e.g., where access to a social service is denied on the
basis of sex and disability.
28.
Disability. In General Comment
No. 5, the Committee defined
discrimination against persons with disabilities[17][17] as “any distinction, exclusion,
restriction or preference, or denial of reasonable accommodation based on
disability which has the effect of nullifying or impairing the recognition,
enjoyment or exercise of economic, social or cultural rights.”[18][18] The
denial of reasonable accommodation should be included in national legislation
as a prohibited form of discrimination on the basis of disability.[19][19] States parties should address discrimination,
such as prohibitions on the right to education, and denial of reasonable
accommodation in public places such as public health facilities and the
workplace,[20][20] as
well as in private places, e.g., as long as spaces are designed and built in
ways that make them inaccessible to wheelchairs, such users will be effectively
denied their right to work.
29.
Age. Age is a prohibited ground of
discrimination in several contexts. The Committee has highlighted the need to
address discrimination against unemployed older persons in finding work, or
accessing professional training or re-training and against older persons living
in poverty with unequal access to universal old age pensions due to their place
of residence.[21][21] In relation to young persons,
unequal access by adolescents to sexual and reproductive health information and
services amounts to discrimination.
30.
Nationality. The ground of nationality should
not bar access to Covenant rights, [22][22] e.g., all children within a State,
including those with an undocumented status, have a right to receive education
and access to adequate food and affordable health care. The Covenant rights
apply to everyone including non-nationals, such as refugees, asylum-seekers,
stateless persons, migrant workers and victims of international trafficking,
regardless of legal status and documentation.[23][23]
31.
Marital and family
status. Marital and family status may differ between
individuals because, inter alia, they
are married or unmarried, married under a particular legal regime, in a de facto relationship or one not
recognized by law, divorced or widowed, live in an extended family or kinship
group or have differing kinds of responsibility for children and dependents or
a particular number of children. Differential treatment in access to social
security benefits on the basis of whether an individual is married must be
justified on reasonable and objective criteria. In certain cases,
discrimination can also occur when an individual is unable to exercise a right
protected by the Covenant because of his or her family status or can only do so
with spousal consent or a relative’s concurrence or guarantee.
32.
Sexual orientation
and gender identity
“Other status” as recognized in article 2(2) includes sexual orientation[24][24]. States parties should ensure that
a person’s sexual orientation is not a barrier to realising Covenant rights,
for example, in accessing survivor’s pension rights. In addition, gender
identity is recognized as among the prohibited grounds of discrimination; for
example, persons who are transgender, transsexual or intersex often face serious
human rights violations, such as harassment in schools or in the work place.[25][25]
33.
Health status. Health status refers to a person’s
physical or mental health.[26][26] States parties should ensure that a
person’s actual or perceived health status is not a barrier to realizing the
rights under the Covenant. The protection of public health is often cited by
States as a basis for restricting human rights in the context of a person’s
health status. However, many such restrictions are discriminatory, for example,
when HIV status is used as the basis for differential treatment with regard to
access to education, employment, health care, travel, social security, housing
and asylum.[27][27]
States parties should also adopt measures to address widespread
stigmatisation of persons on the basis of their health status, such as mental
illness, diseases such as leprosy and women who have suffered obstetric
fistula, which often undermines the ability of individuals to enjoy fully their
Covenant rights. Denial of access to health insurance on the basis of health
status will amount to discrimination if no reasonable or objective criteria can
justify such differentiation.
34.
Place of residence. The exercise of Covenant rights
should not be conditional on, or determined by, a person’s current or former
place of residence; e.g., whether an individual lives or is registered in an
urban or a rural area, in a formal or an informal settlement, is internally
displaced or leads a nomadic lifestyle. Disparities between localities and
regions should be eliminated in practice by ensuring, for example, that there
is even distribution in the availability and quality of primary, secondary and
palliative health care facilities.
35.
Economic and social
situation.
Individuals and groups of individuals must not be arbitrarily treated on
account of belonging to a certain economic or social group or strata within
society. A person’s social and economic situation when living in poverty or being homeless may
result in pervasive discrimination, stigmatisation and negative stereotyping
which can lead to the refusal of or unequal access to the same quality of
education and health care as others, as well as the denial of or unequal access
to public places.
36.
In addition to
refraining from discriminatory actions, States parties should take concrete,
deliberate and targeted measures to ensure that discrimination in the exercise
of Covenant rights is eliminated. Individuals and groups of individuals, who
may be distinguished by one or more of the prohibited grounds, should be
ensured the right to participate in decision-making processes over the
selection of such measures. States parties should regularly assess whether the
measures chosen are effective in practice.
37.
Legislation. Adoption of legislation to address
discrimination is indispensable in complying with Article 2(2). States parties
are therefore encouraged to adopt specific legislation that prohibits
discrimination in the field of economic, social and cultural rights. Such laws
should aim at eliminating formal and substantive discrimination, attribute
obligations to public and private actors and cover the prohibited grounds
discussed above. Other laws should be regularly reviewed and, where necessary,
amended in order to ensure that they do not discriminate or lead to
discrimination, whether formally or substantively, in relation to the exercise
and enjoyment of Covenant rights.
38.
Policies, plans and
strategies. States
parties should ensure that strategies, policies, and plans of action are in
place and implemented in order to address both formal and substantive
discrimination by public and private actors in the area of the Covenant rights.
Such policies, plans and strategies should address all groups distinguished by
the prohibited grounds and States parties are encouraged, amongst other
possible steps, to adopt temporary special measures in order to accelerate the
achievement of equality. Economic policies, such as budgetary allocations and
measures to stimulate economic growth, should pay attention to the need to
guarantee the effective enjoyment of the Covenant rights without
discrimination. Public and private institutions should be required to develop
plans of action to address non-discrimination and the State should conduct
human rights education and training programmes for public officials and make
such training available to judges and candidates for judicial appointments.
Teaching on the principles of equality and non-discrimination should be
integrated in formal and non-formal inclusive and multicultural education, with
a view to dismantling notions of superiority or inferiority based on prohibited
grounds and to promote dialogue and tolerance between different groups in
society. States parties should also adopt appropriate preventive measures to
avoid the emergence of new marginalised groups.
39.
Elimination of
systemic discrimination. States parties must adopt an active approach to eliminating systemic
discrimination and segregation in practice. Tackling such discrimination will
usually require a comprehensive approach with a range of laws, policies and
programmes, including temporary special measures. States parties should
consider using incentives to encourage public and private actors to change
their attitudes and behaviour in relation to individuals and groups of
individuals facing systemic discrimination, or penalize them in case of
non-compliance. Public leadership and programmes to raise awareness about
systemic discrimination and the adoption of strict measures against incitement
to discrimination are often necessary. Eliminating systemic discrimination will
frequently require devoting greater resources to traditionally neglected
groups. Given the persistent hostility towards some groups, particular
attention will need to be given to ensuring that laws and policies are
implemented by officials and others in practice.
40.
Remedies and accountability. 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.
Institutions dealing with allegations of discrimination customarily include
courts and tribunals, administrative authorities, national human rights
institutions and/or ombudspersons, which should be accessible to everyone
without discrimination. These institutions should adjudicate or investigate
complaints promptly, impartially, and independently and address alleged
violations relating to article 2(2), including actions or omissions by private
actors. Where the facts and events at issue lie wholly, or in part, within the
exclusive knowledge of the authorities or other respondent, the burden of proof
should be regarded as resting on the authorities, or the other respondent,
respectively. These institutions should also be empowered to provide effective
remedies, such as compensation, reparation, restitution, rehabilitation,
guarantees of non-repetition, public apologies, and State parties should ensure
that these measures are effectively implemented. Domestic legal guarantees of
equality and non-discrimination should be interpreted by these institutions in
ways which facilitate and promote the full protection of economic, social and
cultural rights.[28][28]
41.
Monitoring, indicators and benchmarks.
States parties are obliged to monitor effectively the implementation of
measures to comply with Article 2(2) of the Covenant. Monitoring should assess
both the steps taken and the results achieved in the elimination of
discrimination. National strategies, policies and plans should use appropriate
indicators and benchmarks, disaggregated on the basis of the prohibited grounds
of discrimination.[29][29]
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[1][1] See International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD); Convention on
Elimination of All Forms of Discrimination Against Women (CEDAW); Convention relating to the Status of Refugees;
Convention relating to the Status of Stateless Persons; Convention on the
Rights of the Child; International Convention on the Protection of the Rights
of All Migrant Workers and Members of Their Families; Convention on the Rights
of Persons with Disabilities.
[2][2] ILO Convention No. 111,
Discrimination in Respect of Employment and Occupation; UNESCO Convention
against Discrimination in Education.
[3][3] See General Comment No. 18 of
the Human Rights Committee.
[4][4] See General Comments Nos. 4,
7, 12, 13, 14, 15, 17, 18 and 19 of CESCR.
[5][5] See General Comments Nos. 5
and 6 of CESCR.
[6][6] For a similar definition see
Article 1, ICERD, Article 1, CEDAW and Article 2, Convention on the Rights of Persons with
Disabilities. The Human Rights Committee comes to a similar
interpretation in General Comment No. 18,
paras. 6 and 7. The Committee has adopted a similar position in previous
General Comments.
[7][7] See General Comment No. 16
[8][8] See also General Comment No.
16.
[9][9] See para. 27 below on
intersectional discrimination.
[10][10] Outcome Document Durban Review Conference, paragraph
6: “Reaffirms that all peoples and individuals constitute one human
family, rich in diversity, and that all human beings are born free and equal in
dignity and rights; and strongly rejects any doctrine of racial superiority
along with theories which attempt to determine the existence of so-called
distinct human races.”
[11][11] See Article 3 of the Covenant
and General Comment No. 16..
[13][13] See paras. 25, 26 and 35
respectively.
[14][14] See General Comments Nos. 15
and 4 respectively.
[15][15] For a comprehensive overview
of State obligations in this regard, see General Comment No. 29 of the
Committee on the Elimination of All Forms of Racial Discrimination.
[16][16] See para. 15.
[17][17] For a definition see Article
1, CRPD: “Persons with disabilities include, but are not limited to individuals
with “long-term physical, mental, intellectual or sensory impairments which in
interaction with various barriers may hinder their full and effective
participation in society on an equal basis with others”.
[18][18] See General Comment No. 5,
para. 15.
[19][19] Article 2, CRPD: “Reasonable
accommodation” means necessary and appropriate modification and adjustments not
imposing a disproportionate or undue burden, where needed in a particular case,
to ensure to persons with disabilities the enjoyment or exercise on an equal
basis with others of all human rights and fundamental freedoms.”
[20][20] See General Comment No. 5,
para. 22.
[21][21] See further General Comment
No. 6.
[22][22] This paragraph is without
prejudice to the application of article 2(3) of the Covenant, which states:
“Developing countries, with due regard to human rights and their national
economy, may determine to what extent they would guarantee the economic rights
recognized in the present Covenant to non-nationals”.
[23][23] See also General Comment No.
30 of the Committee on the Elimination of All Forms of Racial Discrimination on
non-citizens (2004).
[24][24] See General Comments No. 14
and 15.
[25][25] For definitions, see
Yogyakarta Principles on the Application of International Human Rights Law in
relation to Sexual Orientation and Gender Identity.
[26][26] See General Comment No. 14,
paras. 12b, 18, 28, and 29.
[27][27] Office of the UN High
Commissioner for Human Rights and Joint United Nations Programme on HIV/AIDS
(2006), International Guidelines on
HIV/AIDS and Human Rights, 2006 Consolidated Version.
[28][28] General Comments No. 3 and 9.
See also the practice of the Committee in its concluding observations on
reports of States parties to the Covenant.
[29][29] See the Committee’s General
Comments on education (No.13), health (No.14), water (No.15), author’s rights
(No.17), social security (No.19), and its new reporting guidelines
(E/C.12/2008/2).