Part 3 Trends in Decision and Conditioning Factors: Claims Relating to Respect, Eight Claims Relating to a Basic Equality of Opportunity and Freedom from Discrimination
From: Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (2nd Edition)
Myres S. McDougal, Harold D. Lasswell, Lung-chu Chen
- Equality before the law — Disability — Ethnicity — Gender — Race
The deprivations with which we are here concerned are those, whether imposed by state officials or others, which deny individuals effective freedom of choice about participation in community value processes because of alleged group characteristics which bear no rational relation to the individuals’ actual potentialities for such participation. The individuals in any community may, of course, differ greatly in their potentialities for participation in different value processes or even in different phases of the same value process. These differences in potentialities for participation do not, however, vary uniformly and rationally with alleged group characteristics described in terms of race, sex, religion, political opinion, language, age, alienage, possession of property, birth, and other status. Differentiation in the treatment of individuals based upon group categorizations having no rational relation to the genuine potential of the individual for contribution to the common interest is commonly described, in both legal and popular parlance, as discrimination.1 Thus, a basic United Nations Study of 1949 recites: “[D]iscrimination (p. 562) includes any conduct based on a distinction made on grounds of natural or social categories, which have no relation either to individual capacities or merits, or to the concrete behaviour of the individual person.”2 Though less extreme in its incidence than slavery,3 and less hierarchized in its differentiations than caste4 and apartheid,5 discrimination may still be most comprehensive, systematic, and severe in the value deprivations it imposes.
The prevalence through history, even into contemporary life, of wide-ranging discriminations, based upon many alleged group characteristics and extending through all community value processes, is a matter of common knowledge. The horrors of comprehensive and systematic racial discrimination are matched only by the persistent and equally destructive corrosions of its less institutionalized and less routinized expression, with all such expression constituting a deep and imminent threat to contemporary world public order.6 The damage done to (p. 563) women, and hence to the whole community, by centuries-old practices of sex discrimination has just begun to filter into the consciousness of both women and men in a few parts of the world. The bloodiness of religious intolerance and oppression has perhaps receded in geographic range, but continues to immerse particular communities, while discriminations based upon unorthodox secular conceptions of rectitude are of abiding concern.7 Discriminations, and even persecutions, arising from intolerance of differing political opinions are characteristic of totalitarian communities, past and present, and sometimes infect even communities which upon occasion prize the wide sharing of power.8 Even a factor so indifferent to human potentialities as language affiliation or preference continues to give rise to varying discriminations in many different parts of the world.9 Finally, many severe diffentiations, often amounting to discriminations and affecting access to all value processes, continue to be (p. 564) made almost everywhere in terms of such blanket categorizations as age, alienage, possession of property, birth, or other status.10
It has been emphasized in chapter 6 above,11 and reiterated in our condemnations of caste and apartheid,12 that any differentiations in the treatment of individuals based upon broad group memberships or alleged characteristics, without regard to actual individual differences in capabilities and potentialities, is highly destructive of that basic freedom of choice which shared respect requires. The most fundamental meaning of human dignity is that individuals are to be regarded and treated as total personalities having their own unique characteristics and potentialities, and are not to be manipulated and managed in mass in terms of putative characteristics assigned through group labels. The only permissible differentiations between individuals that a law of human dignity can honor for the recruitment and training of people for performance of the many different roles in our modern, complex society are very particular ones. These differentiations must be based entirely upon a careful configurative appraisal of the individual person with all his distinctive characteristics, and of the range of opportunities for participation in social processes that either are open or can be made open to him. An effective collective effort to afford every individual the utmost opportunity to develop his latent talents into socially useful skills and capabilities can only augment the aggregate production of all community values, including respect, which then become available for cumulative commitment and immediate enjoyment.
It would appear that a general norm of nondiscrimination, fully expressive of these policies, is rapidly emerging as an accepted prescription of international law. A major stated purpose of the United Nations Charter, reinforced by more detailed provisions,13 is to “achieve international cooperation . . . in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”14 The Universal Declaration of Human Rights,15 no less broad in its specification of purposes, expands the itemization of impermissible group characterizations. Article 2 states:
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.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.16
The thrust toward a general principle of nondiscrimination is strengthened by Article 7: “All 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.”17 Similarly, the International Covenants on Human Rights, though purporting to confine their protection to broadly specified particular rights, offer a broad and expandable itemization of impermissible group characterizations. Thus, the International Covenant on Civil and Political Rights states, in Article 2(1), that
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.18
It adds, in Article 26, that
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.19
Again, Article 2(2) of the International Covenant on Economic, Social, and Cultural Rights provides:
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.20
The increasingly explicit aspiration of authoritative prescription toward comprehensiveness, both in reference to protected rights and to impermissible group characterizations, is illustrated in the International Convention on the Elimination of All Forms of Racial Discrimination,21 as well as in the Declaration of the same title which preceded it.22 In practically identical terms, these influential formulations affirm that
the Charter of the United Nations is based on the principles of dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action, in co-operation with the Organization, for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion,23
the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin,24
and, further, that
all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discrimination.25
(p. 567) The comprehensiveness of this norm of nondiscrimination is further documented and confirmed by recurring assertions in the Proclamation of Teheran issued by the International Conference on Human Rights in 1968.26 Among its various emphases, the Proclamation solemnly states that
It is imperative that the members of the international community fulfill their solemn obligations to promote and encourage respect for human rights and fundamental freedoms for all without distinctions of any kind such as race, colour, sex, language, religion, political or other opinions,27
The primary aim of the United Nations in the sphere of human rights is the achievement by each individual of the maximum freedom and dignity. For the realization of this objective, the laws of every country should grant each individual, irrespective of race, language, religion or political belief, freedom of expression, of information, of conscience and of religion, as well as the right to participate in the political, economic, cultural and social life of his country.28
(p. 568) It will be convenient to further document and illustrate the emergence of this general norm of nondiscrimination by reference to the development of more specific prescriptions banning discriminations based upon certain alleged particular group characteristics: race (including color, descent, national or ethnic origin), sex, religion, political opinion, language, age, alienage, possession of property, birth, and other status.29
1 See, e.g., a series of studies on discrimination undertaken under the auspices of the United Nations: C. Ammoun, Study of Discrimination in Education, U.N. Doc. E/CN.4/Sub. 2/181/Rev. 1 (1957); J. Ingles, Study of Discrimination in Respect of the Right of Everyone to Leave Any Country, Including His Own, and to Return to His Country, U.N. Doc. E/CN.4/Sub. 2/220/Rev. 1 (1963); A. Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices, U.N. Doc. E/CN.4/Sub. 2/200/Rev. I (1960); M. Rannat, Study on Equality in the Administration of Justice, U.N. Doc. E/CN.4/Sub. 2/296/Rev. 1 (1972); V. Saario, Study of Discrimination against Persons Born Out of Wedlock, U.N. Doc. E/CN.4/Sub. 2/265/Rev. 1 (1967); H. Santa Cruz, Racial Discrimination, U.N. Doc. E/CN.4/Sub. 2/307/Rev. 1 (1971); H. Santa Cruz, Study of Discrimination in the Matter of Political Rights, U.N. Doc. E/CN.4/Sub. 2/213/Rev. 1 (1962); United Nations, The Main Types and Causes of Discrimination, U.N. Doc. E/CN.4/Sub. 2/40/Rev. 1 (1949) (memorandum submitted by the secretary-general).
See also E. Vierdag, The Concept of Discrimination in International Law (1973); McKean, The Meaning of Discrimination in International and Municipal Law, 44 Brit. Y.B. Int’l L. 177 (1970); Sorensen, The Quest for Equality, 507 Int’l Conciliation 289 (1956); Van Dyke, Human Rights without Discrimination, 67 Am. Pol. Sci. Rev. 1267 (1973).
For a discussion of positive programs to remove the causes of inequality and of the importance of managing all phases of the constitutive process to prevent, deter, restore, rehabilitate, and reconstruct instances of discrimination, see chapter 9 infra, at notes 239–84 and accompanying text. See also chapter 6 supra, at note 52 and accompanying text,
2 United Nations, The Main Types and Causes of Discrimination 9, U.N. Doc. E/CN.4/Sub. 2/40/Rev. 1 (1949) (memorandum submitted by the secretary-general). Based on the United Nations studies of various aspects of discrimination, McKean has summarized:
It was generally agreed that the term “discrimination” is not synonymous with “differential treatment” or “distinction”. Rather, in the sense used in the studies, “discrimination” means some sort of distinction made against a person according to his classification into a particular group or category rather than by taking into account his individual merits or capacities.
McKean, The Meaning of Discrimination in International and Municipal Law, 44 Brit. Y.B. Int’l L. 177, 180 (1970) (footnote omitted).
4 See id. at notes 303–86 and accompanying text.
5 See id. at notes 387–598 and accompanying text.
6 The horror of racial discrimination in southern Africa, which has aroused worldwide indignation, represents, of course, the most notorious, extreme case. Racial discrimination exists elsewhere in less systematic and less routinized fashions. Discrimination is practiced against the “colored” people of Great Britain, the blacks and other minority groups of the United States, the overseas Chinese in southeast Asia, the Indian settlers in East Africa, and the Aborigines in Australia.
Drawing largely upon a series of reports published by the Minority Rights Group based in London, Dehner has given this summary account:
Aside from South Africa, there is virtually no concern expressed about discriminatory practices of U.S.-controlled foreign companies. Yet, ethnic and racial discrimination infests much of the world. Among the minorities which commentators have found to be victims of economic discrimination are the Burakumin (Eta) in Japan, the southern African tribes of the Sudan, the Eritreans of Ethiopia, the Crimean Tatars and the Volga Germans in the Soviet Union, the Basques of Spain and France, the Chinese in Southeast Asia, the Biharis of Bangladesh, Oriental immigrants and Druzes in Israel, the East Indians of Guyana and Trinidad, the non-white population of the United Kingdom, Albanians in Yugoslavia, Indians in Burma and Malaya, the Watusi of Rwanda, the Tamil-speaking Ceylonese of Ceylon, East Asians in Kenya, French Canadians in Canada, Walloons in Belgium, various Indian geographic and caste groups, and Arabs and Bretons in France. Even if some of these charges of discrimination are untrue, it is clear that racial prejudice is a global scourge.
Dehner, Multinational Enterprise and Racial Non-Discrimination: United States Enforcement of an International Human Right, 15 Harv. Int’l L. J. 71, 81–82 (1974) (footnotes omitted).
The series of reports includes G. DeVos, Japan’s Outcastes—The Problem of the Burakumin (Rep. No. 3, 1971); A. Dzidzienyo, The Position of Blacks in Brazilian Society (Rep. No. 7, 1971); Y. Ghai, The Asian Minorities of East and Central Africa (Rep. No. 4, 1971); G. Grant, The Africans’ Predicament in Rhodesia (Rep. No. 8, 1972); H. Mabbett, P. Mabbett, & C. Coppel, The Chinese in Indonesia, The Philippines and Malaysia (Rep. No. 10, 1972); G. Morrison, The Southern Sudan and Eritrea: Aspects of Wider African Problems (Rep. No. 5, 1971); A. Sheehy, The Crimean Tartars and Volga Germans: Soviet Treatment of Two National Minorities (Rep. No. 6, 1971); B. Whitaker, The Biharis in Bangladesh (Rep. No. 11, 1972).
7 Long after the religious wars of the past, religious tensions have persisted. The bloodiness of the confrontation between Protestants and Catholics in Northern Ireland has been protracted. Religious friction occurs elsewhere between Buddhists and Catholics in South Vietnam, Hindus and Moslems in India and Pakistan, Arabs and Jews in Israel and the Arab countries.
19 Id., Art. 26, 21 U.N. GAOR, Supp. (No. 16) 55–56. Compare the principle espoused by Art. 26 with Art. 7 of the Universal Declaration, supra note 15.
21 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969) [hereinafter cited as Convention on the Elimination of All Forms of Racial Discrimination].
23 Convention on the Elimination of All Forms of Racial Discrimination, supra note 21, Preamble, 660 U.N.T.S. at 212–16.
28 Id. This norm of nondiscrimination has been expressed in similar terms in other universal and regional human rights conventions and declarations. See, e.g., International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted Nov. 30, 1973, G.A. Res. 3068, 28 U.N. GAOR, Supp. (No. 30) 75, U.N. Doc. A/9233/Add. 1 (1973); American Convention on Human Rights, signed Nov. 22, 1969, OAS Official Records OEA/Ser.K/XVI/1.1, Doc. 65, Rev. 1, Corr. 1 (Jan. 7, 1970), reprinted in 9 Int’l Legal Materials 99, 101 (1970); Declaration on Social Progress and Development, adopted Dec. 11, 1969, Arts. 1 and 2, G.A. Res. 2542, 24 U.N. GAOR, Supp. (No. 30) 49, U.N. Doc. A/7630 (1969); Declaration on Elimination of Discrimination against Women, adopted Nov. 7, 1967, G.A. Res. 2263, 22 U.N. GAOR, Supp. (No. 16) 35, U.N. Doc. A/6716 (1967); Declaration on the Promotion among Youth of the Ideals of Peace, Mutual Respect and Understanding between Peoples, adopted Dec. 7, 1965, Principles 1 and 3, G.A. Res. 2037, 20 U.N. GAOR, Supp. (No. 14) 40, U.N. Doc. A/6014 (1965); Employment Policy Convention, adopted July 9, 1964, Art. 1(2)(c), 569 U.N.T.S. 65 (entered into force July 15, 1964); Protocol to the Convention against Discrimination in Education, adopted Dec. 10, 1962,  U.N.T.S. No. 9423 (Cmd. 3894); Convention against Discrimination in Education, adopted Dec. 14, 1960, 429 U.N.T.S. 93, 96 (UNESCO General Conference) (entered into force May 22, 1962); Declaration on the Rights of the Child, Principle 1, adopted Nov. 20, 1959, G.A. Res. 1386, 14 U.N. GAOR, Supp. (No. 16) 19, U.N. Doc. A/4354 (1959); Convention concerning Discrimination in Respect of Employment and Occupation, adopted June 25, 1958, 362 U.N.T.S. 31 (ILO General Conference) (entered into force June 15, 1960); Convention Relating to the Status of Stateless Persons, Art 3, adopted Sept. 23, 1954, 360 U.N.T.S. 117 (entered into force June 6, 1960); Convention on Human Rights and Fundamental Freedoms, adopted Nov. 4, 1950, 1950 Europ. T.S. No. 5, 213 U.N.T.S. 221; Convention Relating to the Status of Refugees, adopted July 25, 1951, Art. 3, 189 U.N.T.S. 137; Equal Remuneration Convention, adopted June 29, 1951, 165 U.N.T.S. 304 (entered into force May 23, 1953); Convention on the Prevention and Punishment of the Crime of Genocide, adopted Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951).
29 The complete documentation of this thesis would explore not only expectations created by agreements, but also those created by international and other judicial authoritative decisions, as well as those created by the whole flow of decisions, constitutional and other, within national communities. In other words, the conclusion we suggest can be reached by reference to all the sources of international law itemized in Art. 38 of the Statute of the International Court of Justice: international conventions, international custom, “the general principles of law recognized by civilized nations,” and “judicial decisions and the teachings of the most highly qualified publicists of the various nations.” I.C.J. Stat. Art. 38. For such an approach see South West African Cases (Second Phase),  I.C.J. 250, 284–316 (Tanaka, J., dissenting).