HUMAN RIGHTS AND EQUALITY: Same issues, different lens?

Pre-history

Equality is not much mentioned before 1940s, e.g. nothing much in the UK’s Magna Carta or Bill of Rights of 1689.

The US Declaration of Independence:

“We hold these Truths to be self-evident, that all Men are created equal…” (1776)

French Declaration of the Rights of Man:

“Men are born and remain free and equal in rights.” (1789)

1948 on

UN Charter preamble:

“reaffirm faith in ….  the equal rights of men and women and of nations large and small”

“promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion”

Universal Declaration of Human Rights (the first proper international human rights treaty), article 1:

‘all human beings are born equal in dignity and rights.’

Article 2 – ‘ Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status…’

Article 7All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Establishes the principle of equality as “the” principle of human rights. Every human rights treaty makes inequality in the respect for other rights in that treaty a violation in itself (see for instance Art 14 of the ECHR).  Human rights in the UK acknowledged (rather than respected) by:

ICCPR (ratification by UK and the starting periodic reporting process 1976)

Article 2  – Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 3  – The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant
Article 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.

ICESCR

Article 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.

Article 3 – The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.

 

CRC (1989)

Article 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.
  2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.

Anti discrimination treaties – CERD, CEDAW & CRPD

Then CERD (1965), CEDAW (1979) and CRPD (2006).  These were human rights treaties designed to protect particular groups which should have been protected by the other treaties but were not.  Interesting to see that race came before gender.

Questions remain as to whether (older) age should have specific protection or not.  cf. CRC

Different issues (the dominance of religious doctrine in many countries) has resulted in the absence of a treaty protecting people from discrimination on the basis of their sexual orientation.  These issues, particularly the conflict with religious doctrine, are issues in the UK (same sex marriage, gay priests etc).

Religious freedom protected (see art 9) but not freedom from religious discrimination.  Issues here include wearing religious symbols and the privileged position of the Church of England and how far state laws should trespass through the temple door.

 

Beneficiaries – often, those most at risk of human rights abuses also happen to share a protected characteristic.

Differences

 

  • Human rights is more than equalities: freedom from torture, inhuman and degrading treatment, fair trials, privacy, freedom of expression.

Although the UDHR and ECHR responded to the atrocities of the 2nd WW and that it is true that the victims of Nazism also shared protected characteristics: Jewish people, Gypsies, gay people their experience cannot be reduced to merely less favourable treatment or difference in treatment. It was complete violation and negation of dignity and all human rights.

 

  • Public/private spheres – human rights governs primarily the relationship between the State and the individual as they are binding on public authorities Not really about the duties we owe each other as individuals – except where horizontal duties can be stretched to fit..
  • Equalities governs the relationship between private individuals as well as between the State and the individual. National equality law usually regulates activities in all sectors: private, public, voluntary, clubs and associations, trades unions and even political parties. It is about the duties we owe each other as individuals, (albeit where the relationship is a regulated one e.g. employer/employee, landlord/tenant, service provider/customer and so on).

ECHR

 

Article 3

Race discrimination may constitute degrading treatment. In East African Asians v UK the applicants were British passport holders but had been refused permission to take up residence in the United Kingdom. The ECmHR considered that the discriminatory immigration legislation constituted an interference with their human dignity which amounted to degrading treatment in the sense of Article 3 of the Convention.

 

Article 14

The importance of Article 14

Affording equality of respect to all persons, treating like cases alike, and treating unlike cases differently, are axioms of rational behaviour in a society which treats each individual as having fundamentally equal worth. Equality in this sense is one of the building blocks of democracy. The non-discrimination guarantee contained in Article 14 is therefore a key provision of the Convention.

ARTICLES 2, 3, 4 and 8 Positive obligations

 

Recent case law has established that the state has a positive obligation to ensure that systems of legal protection—such as the criminal justice system—operate in such a way as to guarantee equal protection of the law to specific groups, such as women or racial minorities. Where the evidence suggests inadequate domestic remedies, and a system which betrays an overall unresponsiveness to gender or racially based aggression, failure to investigate in a specific case may amount to violation of Article 14, read with Articles 2 or 3.

In Eremia v Moldova the state’s inadequate approach to domestic violence amounted to condoning discrimination against women and was held to breach Article 14. This developing approach to positive obligations may mean more focus on the obligation upon signatory states to ‘secure’ equal enjoyment of the other Convention rights.

Key principles of human rights law:

  • states have an obligation to protect people from human rights violations;
  • this obligation particularly applies to the most vulnerable and must be complied with without discrimination;
  • any serious human rights abuses must always be effectively investigated; and
  • the state must ensure that the people responsible for upholding the law including police officers and other law enforcement officials are themselves held to account if they have violated the rights of others.

Convention Principles and the relevant jurisprudence of the European Court of Human Rights

ARTICLE 1

Obligation to respect Human Rights

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”

This provision imposes a positive duty on all member states to ensure that the substantive rights in the ECHR are properly respected.  This requires the state to ensure that all public bodies and government agencies comply with the rights in the ECHR and that there are laws, institutions and processes to protect people from the actions of third parties.

The Committee of Ministers of the Council of Europe has produced guidelines for ensuring respect for human rights and for eradicating impunity for serious human rights violations:[1]

“For the purposes of these guidelines, “serious human rights violations” concern those acts in respect of which states have an obligation under the Convention, and in the light of the Court’s case law, to enact criminal law provisions. Such obligations arise in the context of the right to life (Article 2 of the Convention), the prohibition of torture and inhuman or degrading treatment or punishment (Article 3 of the Convention), the prohibition of forced labour and slavery (Article 4 of the Convention) and with regard to certain aspects of the right to liberty and security (Article 5, paragraph 1, of the Convention) and of the right to respect for private and family life (Article 8 of the Convention).”[2]

In practice and in the context of this opinion, the Guidelines require:

“States should take all necessary measures to comply with their obligations under the Convention to adopt criminal law provisions to effectively punish serious human rights violations through adequate penalties. These provisions should be applied by the appropriate executive and judicial authorities in a coherent and non-discriminatory manner.”[3]

“States should establish and publicise clear procedures for reporting allegations of serious human rights violations, both within their authorities and for the general public. States should ensure that such reports are received and effectively dealt with by the competent authorities.

States should take measures to encourage reporting by those who are aware of serious human rights violations. They should, where appropriate, take measures to ensure that those who report such violations are protected from any harassment and reprisals.”[4]

“States should also establish mechanisms to ensure the integrity and accountability of their agents. States should remove from office individuals who have been found, by a competent authority, to be responsible for serious human rights violations or for furthering or tolerating impunity, or adopt other appropriate disciplinary measures. States should notably develop and institutionalise codes of conduct.”[5]

“Combating impunity requires that there be an effective investigation in cases of serious human rights violations. This duty has an absolute character.

The right to life (Article 2 of the Convention)

The obligation to protect the right to life requires, inter alia, that there should be an effective investigation when individuals have been killed, whether by state agents or private persons, and in all cases of suspicious death. This duty also arises in situations in which it is uncertain whether or not the victim has died, and there is reason to believe the circumstances are suspicious, such as in the case of enforced disappearances.

 

The prohibition of torture and inhuman or degrading treatment or punishment (Article 3 of the Convention)

States are under a procedural obligation arising under Article 3 of the Convention to carry out an effective investigation into credible claims that a person has been seriously ill-treated, or when the authorities have reasonable grounds to suspect that such treatment has occurred.

The prohibition of slavery and forced labour (Article 4 of the Convention)

The prohibition of slavery and forced labour entails a procedural obligation to carry out an effective investigation into situations of potential trafficking in human beings.

The right to liberty and security (Article 5 of the Convention)

Procedural safeguards derived, inter alia, from the right to liberty and security require that states conduct effective investigations into credible claims that a person has been deprived of his or her liberty and has not been seen since.

The right to respect for private and family life (Article 8 of the Convention)

States have a duty to effectively investigate credible claims of serious violations of the rights enshrined in Article 8 of the Convention where the nature and gravity of the alleged violation so requires, in accordance with the case law of the Court.”[6]

Articles 2, 3, 4 and 8 of the European Convention on Human Rights impose positive obligations to protect the substantive rights – whoever is the likely perpetrator.  This positive duty particularly requires states to investigate allegations of torture, inhuman or degrading treatment or punishment or deaths that may have occurred in breach of the Convention even where such treatment may have been caused by the police or other law enforcement officials and a duty to investigate will occur when police officers use excessive force or unnecessarily inflict serious injuries.

The duty to protect people from violations of human rights and to investigate any harm done is not always properly respected and, historically, law enforcement officials have too often failed to protect vulnerable groups.  The state’s obligations obviously extends to women subjected to domestic violence and sexual assaults, children abused by their carers or others, people with disabilities (especially those with learning difficulties and those resident in institutions), ethnic minorities (especially Roma people), lesbian, gay, bisexual and transgendered people and others.  These failures by the state violate the rights in ECHR and the discriminatory nature of these failures breaches Article 14.

 

Resources

The Committee of Ministers of the Council of Europe Guidelines for ensuring respect for human rights and for eradicating impunity for serious human rights violations

https://wcd.coe.int/ViewDoc.jsp?id=1769177

ECHR FACTSHEETS

Race

http://www.echr.coe.int/Documents/FS_Racial_discrimination_ENG.pdf

Roma

http://www.echr.coe.int/Documents/FS_Roma_ENG.pdf

Domestic violence

http://www.echr.coe.int/Documents/FS_Domestic_violence_ENG.pdf

Violence against women

http://www.echr.coe.int/Documents/FS_Violence_Woman_ENG.pdf

Slavery and forced labour

http://www.echr.coe.int/Documents/FS_Forced_labour_ENG.pdf

Convention on preventing and combating violence against women and domestic violence (Istanbul Convention)

http://www.coe.int/t/dghl/standardsetting/convention-violence/default_en.asp

Opinion of the Commissioner for Human Rights concerning Independent and Effective Determination of Complaints against the Police

https://wcd.coe.int/ViewDoc.jsp?id=1417857

UK College of Policing: Guide to investigations

http://www.app.college.police.uk/app-content/investigations/introduction/

Guide to effective investigations for National Human Rights Institutions

http://www.asiapacificforum.net/support/files/investigations-manual-for-nhris

UN Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

http://www.ohchr.org/EN/ProfessionalInterest/Pages/EffectiveInvestigationAndDocumentationOfTorture.aspx

Effective Investigations under Article 2 of the European Convention on Human Rights: Securing the Right to Life or an Onerous Burden on a State?

http://ejil.oxfordjournals.org/content/21/3/701.full

[1] Adopted 30th March 2011.

[2] II, paragraph 2.

[3] III, paragraph 1.

[4] III, paragraph 4 and 5.

[5] III, paragraph 7.

[6] V, paragraph 1.

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