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.
To see the Declaration of Principles on Equality, click here.
