English for Lawyers (ENGSEMJ)
Topics in Int’l Law and Human Rights
Topic #5:
The Right to Equality and
The Freedom from Discrimination
Richard Hustad, Norwegian Centre for Human Rights, [email protected]
© 2008, All Rights Reserved
Defining ’Equality’
• Who is entitled to equality?
– Everyone
• Who often does not enjoy equality?
–
–
–
–
–
Those with unpopular opinions / lifestyles
Outcasts
Marginalized social groups
Minorities
Indigenous people
• If one is treated differently, what do they suffer from?
What are they subject to? (What right is infringed?)
– Discrimination
– (Right to equality / Freedom from discrimination)
Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)
© 2008, All Rights Reserved
Defining ’Minority’
• Technically, there is no definition of minority in IL
• Groups listed in various documents
– Race, color, sex, language, religion, political or other opinion,
national or social origin, property, birth
– Or other status
• Working definition of minority:
– ”A non-dominant group of individuals who share certain national,
ethnic, religious or linguistic characteristcs which are different from
those of the majority population.”
Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)
© 2008, All Rights Reserved
Who is Entitled to Minority Rights?
• ”Person belonging to” a group that ”exists”
– ”Person:” this is an individual right
• Group right: individuals entitled to a right in cooperation with
other individuals
• Collective right: a group entitled to a right as a group
– ”Belonging to:” entitlement to this right requires membership
– ”Group:” enjoyment of right can only be done with other individuals
– ”Exists:” the group must exist in fact
• Objective Rule: ethnically, linguistically, or religiously identifiable
group
• Subjective Rule: self-identification
Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)
© 2008, All Rights Reserved
What Must States do for Minorities?
• Negative Duty:
– Tolerate minority practices (do no harm)
• Positive Duties
– Work toward tolerance by individuals who are members of a
minority group toward society-at-large (re-socialize minorities).
This requires changing a minority practice that is both:
• 1. Unlawful domestically, and
• 2. Unlawful internationally (against human rights)
– Work toward tolerance of others (society-at-large) toward
minorities (re-socialize society). There are two types of ’special
measures:’
• Special Measures: Accommodation (bring equality to
minorities)
• Affirmative Action: Integration (bring minorities to equality)
Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)
© 2008, All Rights Reserved
Is a Distinction Legal?
• Two Definitions:
– Distinction: to treat individuals differently, but within the law
– Discrimination: to treat individuals differently, but against the law
• Test to Determine if a Distinction is Discrimination:
– Is distinction based on objective grounds?
– Is distinction based on reasonable grounds?
• Is it proportional to the stated purpose?
– Does distinction have a legitimate aim?
– Will the distinction be terminated when grounds no longer exist?
Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)
© 2008, All Rights Reserved
Concluding Question
• Do minorities have more rights than other citizens?
• The ultimate point is that they should not.
– When a person enjoys all rights, they are whole.
– When a person is not whole, minority rights are supposed to assist
them in being whole (but not more than whole).
Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)
© 2008, All Rights Reserved
Discussion Exercises
Now Until 17:00: Discussion within groups
17:00 – 17:15: Break (or informally continue group discussions)
17:15 – 17:25: Continue discussion within groups
17:25 – 17:40: Exercise A (ca. 5-minute intro for each group)
17:40 – 17:55: Exercise B (ca. 5-minute intro for each group)
17:55 – 18:00: Conclusion of Class
• Exercise A (the case of Gratz v. University of Michigan)
– Team 1: Advocate on behalf of the University of Michigan
– Team 2: Advocate on behalf of the United States (Gratz)
• Exercise B (the fictitious case of the Sharia Statute in Norway)
– Team 3: Advocate on behalf of Women’s Rights Internat’l
– Team 4: Advocate on behalf of Norway
Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)
© 2008, All Rights Reserved