The Committee on Economic, Social and Cultural Rights (CESCR) has affirmed that all reasonable strategies must be informed by an equality framework, prioritizing the needs of disadvantaged groups and ensuring protection from discrimination. States have an immediate, unqualified duty to ensure both formal and substantive equality in the implementation of policies. Strategies must specifically address issues of systemic discrimination and the barriers faced by individuals who have suffered historic discrimination or present prejudice. Indeed the principle of non-discrimination is a foundational principle of human rights law. Given the disproportionate effect of poverty and homelessness on women, minority groups, people with disabilities and youth, an equality framework is considered critical to addressing the structural and systemic patterns of discrimination, stigmatization and exclusion that lie behind these problems. In CESCR’s General Comment on non-discrimination, the Committee clarified that “economic and social situation” is one of the prohibited grounds of discrimination for which the government has a duty to eliminate. The Committee explained that “a person’s social and economic situation when living in poverty or being homeless may result in pervasive discrimination, stigmatization 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.”[1] The government has a positive obligation to ensure that anti-discrimination measures cover discrimination in both the public and private spheres. At Canada’s most recent review under the Convention on Economic, Social and Cultural Rights 2006, one critical recommendation made by the CESCR was that the “[F]ederal, provincial and territorial legislation be brought in line with the State party’s obligations under the Covenant, and that such legislation should protect poor people in all jurisdictions from discrimination because of their social or economic status.”[2]
Where you or your client is a member of a historically disadvantaged group and faces social and economic deprivation, it can be argued that this deprivation is discriminatory and violates the right under international law to be free from discrimination. Moreover where the government is taking insufficient steps to protect the rights of historically disadvantaged groups, it can be argued that the government is in violation of international law by failing to fulfill its positive obligation to take steps to address the unique needs and challenges of these groups to ensure their equal enjoyment of Covenant rights.
For a list of factors that must be considered/implemented by governments to prevent discrimination by way of reasonable accommodation click here. See also elements of a reasonable policy/program as it relates to state’s positive obligations to prevent discrimination.
For all international jurisprudence relating to the Right to non-discrimination in Word format click here.
[1] United Nations Committee on Economic, Social and Cultural Rights, General Comment 20: Non-discrimination in Economic, Social and Cultural Rights (art 2 para 2), UNCESCROR, 42d Sess, UN Doc E/C.12/GC/20, (2009) at para 35.
[2] United Nations Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties Under Articles 16 and 17 of the Covenant: Concluding Observations of the Committee on Economic, Social and Cultural Rights: Canada, UNCESCROR, 36th Sess, UN Doc E/C.12/CAN/CO/4 & E/C.12/CAN/CO/5, (2006) at para 39-41 (emphasis added).
| Treaty Provision | Text |
| International Convention on the Elimination of all forms of Racial Discrimination, article 2 | “1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to en sure that all public authorities and public institutions, national and local, shall act in conformity with this obligation; (b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;” |
| International Covenant on Civil and Political Rights, art. 26 | “All persons are equal before the law and are entitled without 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 any ground such as 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, art. 2(2) | “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.” |
| Convention on the Rights of Persons With Disabilities, art. 5-7 | “Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;”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” (art. 2)“1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.
3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.” (art. 5) “1. States Parties recognize that women and girls with disabilities are subject to multiple discrimination, and in this regard shall take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms. 2. States Parties shall take all appropriate measures to ensure the full development, advancement and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in the present Convention.” (art. 6) “1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.” (art. 7)
“2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.” (art. 14) |
| Convention on the Rights of the Child, art. 2(1) | “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” |
| International Convention on the Elimination of All Forms of Racial Discrimination, art. 2(1), 5 | “(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;” (art. 2(1))“In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution;
(e) Economic, social and cultural rights…” (art. 5) |
| Convention on the Elimination of All Forms of Discrimination Against Women, art. 1 | “For the purposes of the present Convention, the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” |
| Declaration Provision |
Text |
| Declaration on the Rights of Indigenous Peoples | “Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity” (art.2)“States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society” (art.15)“Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.” (art. 9) |
Concluding Observations:
General Comments:
Other Jurisprudence:
For more context specific observations made by various UN bodies regarding Canada’s performance under various international treaties click here.