13.2.4 Discrimination based on birth, descent or social origin Condensed: Distinctions which are not objective or reasonable must not be made against those who are born out of wedlock, born of stateless parents or are adopted or constitute the families of such persons. A child’s right to inheritance should not be dependent whether he or she was born out of wedlock. Distinctions based on descentor social origin includes unreasonable or unjustified differences of treatment based on caste or similar inherited status. States should take measures against segregation, hate speech and violence aimed at members of descent-based communities. Members of descent-based communities should be consulted with regard to decisions that affect them and affirmative action measures should be taken to ensure their participation in public affairs. State should [t]ake resolute measures to secure rights of marriage for members of descent-based communities who wish to marry outside the community and take measures to eradicate poverty among descent-based communities and combat their social exclusion or marginalization. Comprehensive: Discrimination based on birth, descent or social origin is prohibited in a number of international and regional human rights instruments.[1]Not every differential treatment based, inter alia, on birth, descent or social origin however constitutes discrimination. As with all other forms of discrimination, differences of treatment are not discriminatory if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a legitimate purpose. However, very weighty reasons are required justify distinctions on these grounds.[2] The CESCR Committee has held that distinctions must ‘not be made against those who are born out of wedlock, born of stateless parents or are adopted or constitute the families of such persons.’[3] Article 10(3) of the CESCR provides that ‘[s]pecial measures of protection should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions.’ A child’s right to inheritance should not be dependent whether he or she was born out of wedlock[4] or adopted.[5] While ‘there are in general persuasive social reasons for giving special treatment to those whose link with a country stems from birth within it’,[6] not all distinctions based on the nationality of parents are reasonable. To limit the right to stand for election to candidates whose parents were nationals violates the prohibition of discrimination based on birth.[7] Similarly naturalized citizens should have the same rights as citizens by birth.[8] Discrimination based on descent or social origin includes discrimination based on caste or similar inherited status and involves differences of treatment that are unreasonable or for illegitimate purposes such as the inability or restricted ability to alter inherited status; socially enforced restrictions on marriage outside the community; private and public segregation, including in housing and education, access to public spaces, places of worship and public sources of food and water; limitation of freedom to renounce inherited occupations or degrading or hazardous work; subjection to debt bondage; subjection to dehumanizing discourses referring to pollution or untouchability; and generalized lack of respect for their human dignity and equality.[9] States should take measures against segregation, hate speech and violence aimed at members of descent-based communities.[10] States should further take measures to ensure equal access to justice, including by organizing training seminars for public officials.[11] Members of descent-based communities should be consulted with regard to decisions that affect them[12] and affirmative action measures should be taken to ensure their participation in public affairs.[13] State should ‘[t]ake resolute measures to secure rights of marriage for members of descent-based communities who wish to marry outside the community’[14] and ‘[t]ake substantial and effective measures to eradicate poverty among descent-based communities and combat their social exclusion or marginalization.’[15] Special measures should be taken with regard to exclusion from education and the removal of stereotypes from textbooks.[16] (See *special measures for women, disadvantaged groups and persons with disabilities*).[17]
UN treaty monitoring bodies have frequently pointed out the continuation of discrimination on the basis of caste despite abolition in law.[18] The CERD Committee in its concluding observations on India noted with concern that caste bias as well as racial and ethnic prejudice and stereotypes are still deeply entrenched in the minds of wide segments of Indian society, particularly in rural areas. The Committee recommends that the State party strengthen its efforts to eradicate the social acceptance of caste-based discrimination and racial and ethnic prejudice, e.g. by intensifying public education and awareness-raising campaigns, incorporating educational objectives of inter-caste tolerance and respect for other ethnicities, as well as instruction on the culture of scheduled castes and scheduled and other tribes, in the National Curriculum Framework, and ensuring adequate media representation of issues concerning scheduled castes, tribes and ethnic minorities, with a view to achieving true social cohesion among all ethnic groups, castes and tribes of India.[19] The Committee further with regard to caste-based violence expressed its concern ‘about reports of arbitrary arrest, torture and extrajudicial killings of members of scheduled castes and scheduled tribes by the police, and about the frequent failure to protect these groups against acts of communal violence.’ The Committee called on the Indian government to provide effective protection to members of scheduled castes and scheduled and other tribes against acts of discrimination and violence, introduce mandatory training on application of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (1989) for police, judges and prosecutors and take disciplinary or criminal law measures against police and other law enforcement officers who violate their duty of protection and/or investigation in relation to crimes against scheduled castes and scheduled and other tribes.[20] Additional references
O de Schutter International human rights law (2010)
M Sepúlveda et al Universal and regional human rights protection – Cases and commentaries (2004)
P Thornberry ‘Confronting racial discrimination: A CERD perspective’ (2005) 5 Human Rights Law Review 239-269
W Vandenhole Non-discrimination and equality in the view of the UN human rights treaty bodies (2005)
A Waughray ‘Caste discrimination and minority rights: The case of India’s Dalits’ (2010) 17 International Journal of Minority and Group Rights 327-353
[1] UDHR art 2, ICESCR art 2, ICCPR arts 2, 26, CRC art 2, ACHPR art 2 (social origin, birth), CERD art 1 (descent). [2]Inze v Austria application 8695/79 (ECtHR 1987) para 41. [3] CESCR General Comment 20 para 26. [4]Inze v Austria application 8695/79(ECtHR 1987) para 39. See also CRC Concluding Observations: Bahamas, CRC/C/15/Add.253 (CRC, 2005), para 3. [5]Pia and Puncernau v Andorra application 69498/01 (ECtHR 2004) para 60. [6]Abdulaziz and Others v United Kingdom applications 9214/80, 9473/81, 9474/81 (ECtHR 1985) para 88. [7]Legal Resources Foundation v Zambia communication 211/98 (ACHPR 2001); Mouvement Ivoirien des Droits Humains (MIDH) v Côte d’Ivoire communication 246/2002 (ACHPR 2008). [8] CERD Concluding Observations: Qatar, CERD/C/60/CO/11 (2002) para 12. See also Modise v Botswana communication communication 97/93 (ACHPR 2000) para 96. [9] CERD General Recommendation 29 para 1. See also CESCR General Comment 20 para 26. [10] CERD General Recommendation 29 paras 14-20, 31. [11] CERD General Recommendation 29 para 25. [12] CERD General Recommendation 29 para 27. [13] CERD General Recommendation 29 paras 28-30. [14] CERD General Recommendation 29 para 32. [15] CERD General Recommendation 29 para 34. [16] CERD General Recommendation 29 paras 44-48. [17]See also CERD General Recommendation 32. [18] Concluding Observations: Madagascar, CERD/C/65/CO/4 (CERD, 2004) para 17; Concluding Observations: Senegal, A/57/18(SUPP) (CERD, 2002) para 445; Concluding Observations: Nepal, CAT/C/NPL/CO/2 (CAT, 2005) para 26; Concluding Observations: Nepal, E/C.12/NPL/CO/2 (CESCR, 2008) para 13. [19] Concluding Observations: India, CERD/C/IND/CO/19 (CERD, 2007) para 27. [20] Concluding Observations: India, CERD/C/IND/CO/19 (CERD, 2007) para 14.
Condensed:
Distinctions which are not objective or reasonable must not be made against those who are born out of wedlock, born of stateless parents or are adopted or constitute the families of such persons. A child’s right to inheritance should not be dependent whether he or she was born out of wedlock.
Distinctions based on descent or social origin includes unreasonable or unjustified differences of treatment based on caste or similar inherited status. States should take measures against segregation, hate speech and violence aimed at members of descent-based communities. Members of descent-based communities should be consulted with regard to decisions that affect them and affirmative action measures should be taken to ensure their participation in public affairs. State should [t]ake resolute measures to secure rights of marriage for members of descent-based communities who wish to marry outside the community and take measures to eradicate poverty among descent-based communities and combat their social exclusion or marginalization.
Comprehensive:
Discrimination based on birth, descent or social origin is prohibited in a number of international and regional human rights instruments.[1]Not every differential treatment based, inter alia, on birth, descent or social origin however constitutes discrimination. As with all other forms of discrimination, differences of treatment are not discriminatory if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a legitimate purpose. However, very weighty reasons are required justify distinctions on these grounds.[2]
The CESCR Committee has held that distinctions must ‘not be made against those who are born out of wedlock, born of stateless parents or are adopted or constitute the families of such persons.’[3] Article 10(3) of the CESCR provides that ‘[s]pecial measures of protection should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions.’ A child’s right to inheritance should not be dependent whether he or she was born out of wedlock[4] or adopted.[5]
While ‘there are in general persuasive social reasons for giving special treatment to those whose link with a country stems from birth within it’,[6] not all distinctions based on the nationality of parents are reasonable. To limit the right to stand for election to candidates whose parents were nationals violates the prohibition of discrimination based on birth.[7] Similarly naturalized citizens should have the same rights as citizens by birth.[8]
Discrimination based on descent or social origin includes discrimination based on caste or similar inherited status and involves differences of treatment that are unreasonable or for illegitimate purposes such as the
inability or restricted ability to alter inherited status; socially enforced restrictions on marriage outside the community; private and public segregation, including in housing and education, access to public spaces, places of worship and public sources of food and water; limitation of freedom to renounce inherited occupations or degrading or hazardous work; subjection to debt bondage; subjection to dehumanizing discourses referring to pollution or untouchability; and generalized lack of respect for their human dignity and equality.[9]
States should take measures against segregation, hate speech and violence aimed at members of descent-based communities.[10] States should further take measures to ensure equal access to justice, including by organizing training seminars for public officials.[11] Members of descent-based communities should be consulted with regard to decisions that affect them[12] and affirmative action measures should be taken to ensure their participation in public affairs.[13] State should ‘[t]ake resolute measures to secure rights of marriage for members of descent-based communities who wish to marry outside the community’[14] and ‘[t]ake substantial and effective measures to eradicate poverty among descent-based communities and combat their social exclusion or marginalization.’[15] Special measures should be taken with regard to exclusion from education and the removal of stereotypes from textbooks.[16]
(See *special measures for women, disadvantaged groups and persons with disabilities*).[17]
UN treaty monitoring bodies have frequently pointed out the continuation of discrimination on the basis of caste despite abolition in law.[18] The CERD Committee in its concluding observations on India noted
with concern that caste bias as well as racial and ethnic prejudice and stereotypes are still deeply entrenched in the minds of wide segments of Indian society, particularly in rural areas. The Committee recommends that the State party strengthen its efforts to eradicate the social acceptance of caste-based discrimination and racial and ethnic prejudice, e.g. by intensifying public education and awareness-raising campaigns, incorporating educational objectives of inter-caste tolerance and respect for other ethnicities, as well as instruction on the culture of scheduled castes and scheduled and other tribes, in the National Curriculum Framework, and ensuring adequate media representation of issues concerning scheduled castes, tribes and ethnic minorities, with a view to achieving true social cohesion among all ethnic groups, castes and tribes of India.[19]
The Committee further with regard to caste-based violence expressed its concern ‘about reports of arbitrary arrest, torture and extrajudicial killings of members of scheduled castes and scheduled tribes by the police, and about the frequent failure to protect these groups against acts of communal violence.’ The Committee called on the Indian government to
provide effective protection to members of scheduled castes and scheduled and other tribes against acts of discrimination and violence, introduce mandatory training on application of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (1989) for police, judges and prosecutors and take disciplinary or criminal law measures against police and other law enforcement officers who violate their duty of protection and/or investigation in relation to crimes against scheduled castes and scheduled and other tribes.[20]
Additional references
O de Schutter International human rights law (2010)
M Sepúlveda et al Universal and regional human rights protection – Cases and commentaries (2004)
P Thornberry ‘Confronting racial discrimination: A CERD perspective’ (2005) 5 Human Rights Law Review 239-269
W Vandenhole Non-discrimination and equality in the view of the UN human rights treaty bodies (2005)
A Waughray ‘Caste discrimination and minority rights: The case of India’s Dalits’ (2010) 17 International Journal of Minority and Group Rights 327-353
[1] UDHR art 2, ICESCR art 2, ICCPR arts 2, 26, CRC art 2, ACHPR art 2 (social origin, birth), CERD art 1 (descent).
[2]Inze v Austria application 8695/79 (ECtHR 1987) para 41.
[3] CESCR General Comment 20 para 26.
[4]Inze v Austria application 8695/79(ECtHR 1987) para 39. See also CRC Concluding Observations: Bahamas, CRC/C/15/Add.253 (CRC, 2005), para 3.
[5] Pia and Puncernau v Andorra application 69498/01 (ECtHR 2004) para 60.
[6] Abdulaziz and Others v United Kingdom applications 9214/80, 9473/81, 9474/81 (ECtHR 1985) para 88.
[7] Legal Resources Foundation v Zambia communication 211/98 (ACHPR 2001); Mouvement Ivoirien des Droits Humains (MIDH) v Côte d’Ivoire communication 246/2002 (ACHPR 2008).
[8] CERD Concluding Observations: Qatar, CERD/C/60/CO/11 (2002) para 12. See also Modise v Botswana communication communication 97/93 (ACHPR 2000) para 96.
[9] CERD General Recommendation 29 para 1. See also CESCR General Comment 20 para 26.
[10] CERD General Recommendation 29 paras 14-20, 31.
[11] CERD General Recommendation 29 para 25.
[12] CERD General Recommendation 29 para 27.
[13] CERD General Recommendation 29 paras 28-30.
[14] CERD General Recommendation 29 para 32.
[15] CERD General Recommendation 29 para 34.
[16] CERD General Recommendation 29 paras 44-48.
[17]See also CERD General Recommendation 32.
[18] Concluding Observations: Madagascar, CERD/C/65/CO/4 (CERD, 2004) para 17; Concluding Observations: Senegal, A/57/18(SUPP) (CERD, 2002) para 445; Concluding Observations: Nepal, CAT/C/NPL/CO/2 (CAT, 2005) para 26; Concluding Observations: Nepal, E/C.12/NPL/CO/2 (CESCR, 2008) para 13.
[19] Concluding Observations: India, CERD/C/IND/CO/19 (CERD, 2007) para 27.
[20] Concluding Observations: India, CERD/C/IND/CO/19 (CERD, 2007) para 14.