Upon becoming parties to a human rights treaty, states must comply with the obligations enshrined therein. Moreover, when applying human rights treaties, it is important to take into account the existence of general principles which are embedded in international human rights law and which guide their application.
It is relevant to attempt to define a general principle by distinguishing it from a human right. In 1986 the UN Commission on Human Rights put forth a definition (Resolution 41/120, December 1986), stating that a human right must:
a) Be consistent with the existing body of international human rights law;
b) Be of fundamental character and derive from the inherent dignity and worth of the human person;
c) Be sufficiently precise to give rise to identifiable and practicable rights and obligations;
d) Provide, where appropriate, realistic and effective implementation machinery, including reporting systems; and
e) Attract broad international support.
General principles are not human rights but there is a degree of overlap as some general principles, such as the principle of non-discrimination and non bis in idem have gradually evolved into substantive human rights by being sufficiently precise and fulfilling the conditions described above.
There is no consensus on general principles, but it is proposed that, to qualify as such, a principle must be:
a) Universally or in a specific jurisdiction, generally accepted;
b) Distinct from human rights to the effect that they are insufficiently precise to give rise to legally identifiable and practicable rights and obligations;
c) Considered either to limit the margin of appreciation of a state or to guide it when examining or evaluating the human right(s) of an individual; and
d) Relevant for the individual enjoyment of human rights.
General principles form, as such, a substratum of law, which helps in interpreting human rights law and international law in general. On the one hand, the principles provide guidelines for judges in deciding individual cases; on the other, they limit the discretionary power of judges and the executive power in deciding individual cases. As such, general principles have an important place in the application of human rights.
A. The rule of law
The rule of law is a cornerstone of the concept of human rights and democracy. There is, however, no international consensus on its meaning. Different traditions in the Anglo-Saxon world (rule of law) and in Continental Europe (l’Etat de droit, Rechtsstaat, Stato del diritto) attach slightly different interpretations to the term. In official documents the concept is not always explicitly defined. A strong consensus does, however, exist on the rule of law as a fundamental principle.
The rule of law implies that rights must be protected by law, independently of the will of the ruler. Individual rights and freedoms are to be protected against any manifestation of arbitrary power by public authorities. The principle of the ‘rule of law’ is contained in the Preamble to the Charter of the United Nations, which states its objective:
[T]o save succeeding generations from the scourge of war, and to reaffirm faith in fundamental human rights [?] in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from international law can be maintained.
The International Commission of Jurists has proposed the following definition: ‘The rule of law is more than the formal use of legal instruments, it is also the Rule of Justice and of Protection for all members of society against excessive governmental power.’ In sum, the rule of law means that law shall condition a government’s exercise of power and that subjects or citizens are not to be exposed to the arbitrary will of their leaders.
1. HISTORICAL DEVELOPMENT
As the rule of law is an old concept, we must go back to its origins in Medieval England to understand its development. After defeating the last Anglo-Saxon King Harold II (1066), William the Conqueror established a central administration. Two factors were characteristic of the political institutions in England at the time: the undisputed supremacy of the central government throughout the country, and the rule or supremacy of the law. The supremacy of the central government was embodied in the power of the King. He was the source of all legislation, while the administration of justice and the jurisdiction were his privileges. Yet, this did not mean that the King stood above the law; according to a widely held belief in England - and other countries - in the Middle Ages, the world was governed by rules deriving either from what was considered divine right or from what was popularly considered to be right. Thus, the King was subject to the law, because it was the law that had first made him King (quia lex facit regem). This is what was originally meant by the rule of law.
Partly because of the feeling among the English people that some sort of ‘higher’ law existed and the early development of parliament, and partly because of the efforts of the nobility to secure its ancient rights against the King, attempts to establish absolute authority failed. The common law courts and parliament, which became increasingly powerful, not only preserved the existing order of justice but also succeeded in giving it a meaning. This reflected the changes taking place in society and the people’s value systems. This development marked the beginning of the rule of law, which could be reconciled with the doctrine of parliamentary supremacy (originated in the seventeenth century dispute with the Crown).
A similar development took place on the European continent where, since the time of the Frankish Kingdom (around 500 A.D.) the principles of l’Etat de Droit (Rechtsstaat in German) were developed. The principle implied that the government could only enact a law or binding regulation on the basis of what is considered right and just. In a substantive sense, the principle implied that the standards and acts of the government must be directed towards the realisation of justice. This principle required not only legislation based on the best possible balance of interests, but also the recognition of freedoms and the existence of an independent judiciary fit to check governmental powers.
2. DYNAMIC CONCEPT
The meaning of the rule of law, since its rise in the early Middle Ages, has gone through a process of change, which runs roughly parallel to evolving views on the role and objectives of a national government. It is a dynamic concept not only in this respect. The rule of law does not stand for an abstract, unchanging set of unambiguous rules but rather for a range of principles which have to be applied and developed on a case-by- case basis. The rule of law should thus be seen as a whole set of legal standards by which governments and subjects are bound. The exact content of these standards is determined by several factors, including public opinion, political consciousness and the prevailing sense of justice.
The fact that the rule of law is constantly changing does not mean that guidelines cannot be distilled from it. On the contrary, it is, to some extent, possible to identify the rules and principles that follow from the rule of law at a certain point in time. Basically, some principles have been part of the rule of law from its origin. These are principles of a universal nature, which have defied change. Some important ones, which have in time developed into substantive rights, are the following:
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No one may be punished except for a distinct breach of an existing law established in the ordinary legal manner before the ordinary courts of the country (nullum crimen, nulla poena sine praevia lege). This principle is enshrined in several national constitutions, and a number of international instruments. See, e.g., Article 7(1) ECHR and Articles 22 and 23 Rome Statute of the International Criminal Court.
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All individuals are ‘innocent until proven otherwise’ (presumption of innocence). This principle was included already in Article 9 Déclaration des Droits de l’Homme et du Citoyen and it is included in several human rights instruments, such as Article 6(1) ECHR.
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Every human being should be treated equally by the same courts and should have the same rights. This equality is not absolute since certain professional groups, such as the military, lawyers and civil servants, are sometimes judged in their professional quality by special courts. This practice is not contrary to the rule of law; within these groups, equality before the law applies to the full.
Generally speaking, the view on the rule of law has gradually shifted from a source of rights for the individual to a means of protection against excessive governmental power. Other rules and principles derived from the rule of law are:
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No arbitrary power. This principle includes the separation of powers. It does not only apply in relations between the legislature, the executive and the judiciary. As the state regulates national life in many ways, discretionary authority is inevitable. Yet, this does not mean pure arbitrary power, i.e., power exercised by agents responsible to no one and subject to no control. The way power and authority are delegated to lower state institutions has to be controlled and the way in which those institutions use their power has to be accounted for. Clearly, a ‘carte blanche’ delegation goes against the rule of law.
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Independence of the judiciary. The independence of the judiciary is closely linked to the principle above. Independence of the judiciary implies the control of legislation and administration by an independent judiciary, and the independence of the legal profession. Fundamental rights and freedoms can best be guaranteed in a society where the judiciary and the legal profession enjoy freedom from interference and pressure, and where every person is entitled to a fair and public hearing by a competent, independent and impartial tribunal.
The rule of law has come to be regarded as the mark of a truly free society. Although its precise meaning differs from country to country, and from one epoch to another, it is always identified with the liberty of the individual. The rule of law aims to maintain a delicate balance between the opposite notions of individual liberty and public order. Every state has to face the challenge of reconciling human rights with the requirements of public interest. This can only be accomplished through independent courts, charged with guarding the balance of power between the citizen and the state.
The most powerful entity in any community, and hence the greatest potential violator of human rights, is the state itself through its public authorities, its officials and agents. Any democratic society needs laws to protect the rights and freedoms of individuals, as laid down in constitutions and treaties or institutionalised as commonlaw. There should be laws enabling individuals to obtain a remedy for any violation, and there should be a legal system that ensures that those remedies will be enforced, especially against the state itself.
In recent years new standards have been developed to strengthen the role of the rule of law, in addition to those already incorporated in international conventions (e.g., Article 14 ICCPR and Article 6(1) ECHR). The International Commission of Jurists has played a significant role in the promotion of these standards. Under the framework of the UN, important standards include the UN Basic Principles on the Independence of the Judiciary; the Procedures for the Effective Implementation of the Basic Principles on the Independence of the Judiciary; and the UN Basic Principles on the Role of Lawyers.
Under the framework of the OSCE, an important document on the rule of law is the document of the Copenhagen Meeting of the Conference of the Human Dimension of the CSCE (1990). This document sets out that states are determined to support and advance those principles that form the rule of law and that the Rule of Law does not mean ‘merely a formal legality [?] but justice based on the recognition of the acceptance of the supreme value of the human personality’ and ‘reaffirm[s] that democracy is an inherent element of the Rule of Law.’
B. The principle of equality and non-discrimination in the enjoyment of human rights
The principle of non-discrimination is of the utmost importance in international law. Various formulations of prohibition of discrimination are contained in, for example, the UN Charter (Articles 1(3), 13(1)(b), 55(c) and 76), the Universal Declaration of Human Rights (Articles 2 and 7), the ICCPR (Articles 2(1) and 26) and the CRC (Article 2). Some instruments are expressly aimed at addressing specific prohibited grounds for discrimination, such as the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) and the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). Other instruments aim at addressing the prohibition of discrimination in the exercise of one or several rights, such as ILO 111, which refers to discrimination in the exercise of the right to work (employment and occupation), and the UNESCO Convention against Discrimination in Education.
A definition of discrimination is included in Article 1(1) CERD, Article 1 CEDAW, Article 1(1) ILO 111, Article 1 CRPD and Article 1(1) Convention against Discrimination in Education. From these different definitions it is possible to conclude that ‘discrimination’ refers to any distinction, exclusion or preference, be it in law or in administrative practices or in practical relationships, between persons or groups of persons, made on the basis of race, disability, colour, sex, religion, political opinion, nationality or social origin, which have the effect of nullifying or impairing the equal enjoyment of any human rights. Other grounds of prohibited discrimination, which are recognised to an increasing degree, are age, sexual orientation and gender identity. In general, human rights instruments require states to respect human rights and ensure that all persons within their territory, and subject to their jurisdiction, enjoy the guaranteed rights without distinction of any kind. It should be noted that in exceptional circumstances the state may derogate from some human rights provisions; such measures may, however, never be discriminatory.
It is well established in international human rights law that not all differences in treatment constitute discrimination. This is summed up by the axiom, ‘persons who are equal should be treated equally and those who are different should be treated differently’ (‘in proportion to the inequality’). As indicated by the Human Rights Committee, ‘the enjoyment of rights and freedoms on an equal footing [?] does not mean identical treatment in every instance.’ Hence, there may be situations in which different treatment is justified. Although not all differences in treatment are discriminatory, international law has established criteria for determining when a distinction amounts to discrimination. In a nutshell, a distinction is compatible with the principle of equality when it has an objective and reasonable justification, pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought. These requirements have been stressed by some of the major human rights supervisory bodies. For example, in the words of the Human Rights Committee:
Not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. (General Comment 18).
As the European Court of Human Rights has stated:
According to the Court’s established case-law, a distinction is discriminatory if it ‘has no objective and reasonable justification’, that is, if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality’ between the means employed and the aim sought to be realised (Marckx v. Belgium).
In the same vein, the Inter-American Court of Human Rights has held that:
Accordingly, no discrimination exists if the difference in treatment has a legitimate purpose and if it does not lead to situations which are contrary to justice, to reason or to the nature of things. It follows that there would be no discrimination in differences in treatment of individuals by a state when the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review. These aims may not be unjust or unreasonable, that is, they may not be arbitrary, capricious, despotic or in conflict with the essential oneness and dignity of humankind (Advisory Opinion No. 4, ‘Proposed amendments to the naturalisation provisions of the Constitution of Costa Rica’, OC-4/84 of 19 January 1984, para. 57).
Thus, differences in treatment (distinction, exclusion, restriction or preference) that comply with the criteria mentioned above are not discriminatory and do not infringe the principle of equality and non-discrimination. Furthermore, certain preferential treatment, such as the special treatment aimed at protecting pregnant women or disabled persons, is not considered discrimination as the purpose of the preferential treatment is to remedy inherent inequalities. Similarly, affirmative action, defined as measures necessary ‘to diminish or eliminate conditions which cause or help to perpetuate discrimination’ aimed to benefit historically disadvantaged groups within society, must not be considered ‘discrimination’
1. DIRECT AND INDIRECT DISCRIMINATION
Any discrimination with the ‘purpose’ or the ‘effect’ of nullifying or impairing the equal enjoyment or exercise of rights is prohibited under the non-discrimination provisions. In other words, the principle of non-discrimination prohibits ‘direct’ and ‘indirect’ forms of discrimination.
The concept of ‘indirect’ discrimination refers to an apparently ‘neutral’ law, practice or criterion, which has been applied equally to everyone but the result of which favours one group over a more disadvantaged group. In determining the existence of indirect discrimination, it is not relevant whether or not there was intent to discriminate on any of the prohibited grounds. Rather, it is the consequence or effect of a law or action which determines whether it is discriminatory or not.
2. VULNERABLE GROUPS AND NON-DISCRIMINATION
The principle of non-discrimination demands that particular attention be given to vulnerable groups and individuals from such groups. In fact, the victims of discrimination tend to be the most disadvantaged groups of society, such as women, minorities, indigenous peoples, refugees and disabled persons. States should identify the persons or groups of persons who are most vulnerable and disadvantaged with regard to full enjoyment of all human rights and take measures to prevent any adverse affects on them. (For an analysis on vulnerable groups see Part IV).
3.AFFIRMATIVE ACTION OR PROTECTIVE MEASURES FOR THE MOST VULNERABLE GROUPS
In some circumstances the principle of non-discrimination requires states to take affirmative action or protective measures to prevent or compensate for structural disadvantages. These measures entail special preferences, which should not be considered discriminatory because they are aimed at addressing structural disadvantages or protecting particularly vulnerable groups, or to encourage equal participation.
Through its General Comments, the Human Rights Committee often refers to the required affirmative action and has adopted a definition in General Comment 18, para. 10, which reads as follows:
The Committee also wishes to point out that the principle of equality sometimes requires states parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a state where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the state should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.
Affirmative action aims to remove obstacles to the advancement of vulnerable groups. It is important to stress that affirmative action is of a temporary nature; it should not continue after its objectives have been achieved.
4. EDUCATION TO COMBAT DISCRIMINATION
Education plays a pivotal role in the struggle against discrimination. Educational campaigns are of key importance for combating stereotypes and promoting tolerance. As disadvantaged groups are often ignorant of the law and fear retaliation or intimidation, education and awareness of their rights and the mechanisms for redress enhance their protection.
IN SUPPORT OF AFFIRMATIVE ACTION MEASURES
The mechanism of ‘affirmative action’ is a vital tool within human rights law in tackling some of the historical grievances that underpin inequality in modern societies. The principle can be understood as an elevator mechanism designed to raise a particular segment of the population that is at level zero (in terms of quantifiable indicators, such as access to services, employment within the private and public sector, political participation, level of education and access to education, and other civil, political, economic, social and cultural rights) to the level that the rest of the population enjoys (level one). The causes for this difference between the target group and the rest of the population, i.e. ‘the gap’, is often the result of persistent historical discrimination. However, rather than a revision of history, which is undesirable, an elevator mechanism accepts the need for the focusing of specific measures aimed at the alleviation of a
Particular disadvantage faced by a specific group. Crucially, however, the mechanism can only be effective if it raises the population to level one, and not to a level higher than the rest of the population, for it would then discriminate unjustly against that portion of the population.
The concept of affirmative action has been defined as ‘a coherent package of measures, of a temporary character, aimed specifically at correcting the position of members of a target group in one or more aspects of their social life, in order to obtain effective equality’ (Bossuyt, UN Doc. E/CN.4/Sub.2/ 2001/15).
In determining when a particular segment of population is entitled to a package of special measures, it is important to stress empirical grounds. The test to examine the claim for affirmative action should be determined by at least two factors: i) the existence of determinable and persistent status of inequality; and ii) effective articulation of the legal right to special measures by representatives - though the latter argument is subservient to the former. In addition, groups, or individuals belonging to such groups that choose to assimilate should be enabled a waiver of this right.
Of course there are numerous other issues that are relevant to the determination of affirmative action, including the fact that such measures often create new disadvantaged groups. Besides, beneficiaries of such action often express the sentiment that the perception of availing of special measures often belittles their own achievements. Instead, they are reduced in public perception to being no more than token beneficiaries of policy rather than grants on meritorious bases.
The justification for special measures however outweighs these considerations. First and foremost, it remains an admittedly imperfect legal guarantee through which historical power relationships within a system are sought to be balanced. Second, such measures attempt to remedy social and structural discrimination. Thus, while not necessarily tackling existing prejudice, they seek to create mechanisms combating structural and institutional imbalances. Third, it attempts the creation of diversity or proportional group representation, by fostering new aspirations and expectations within groups with a view towards fuller participation in all aspects of public life.
A fourth argument in favour of affirmative action is the social utility argument stressing that society, as a whole, is better off with all its components participating in processes that affect them. Related to this is the idea that a level of interaction between different groups in a society can calm potential future social unrest by enabling means other than violence for discussions about grievances. Finally, if the public affairs of the state are more inclusive there is a greater likelihood that it will develop a pluralistic attitude that enables greater harmony and equality between groups.
Joshua Castellino