13.2.3 Discrimination based on race, colour, national or ethnic origin Condensed: Racial distinctions are deemed to be inherently suspect and weighty reasons, such as correcting factual inequalities, are required to justify differential treatment.Race in international law can cover a wide range of characteristics arising from biological, cultural and historical factors as it can include national or ethnic origin and consequently linguistic, cultural and historical differences. Discrimination can includeracial segregation and apartheid, and denial of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafés, theatres and parks. States have an obligation to criminalize discrimination based on race, colour, national or ethnic origin and to investigate any incidents and prosecute those responsible. Racial profiling, the practice of police and other law enforcement officers relying on race, colour, descent or national or ethnic origin as the basis for subjecting persons to investigatory activities or for determining whether an individual is engaged in criminal activity, constitutes racial discrimination. Comprehensive: Article 1(1) of CERD defines ‘racial discrimination’ as ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural and other field of public life.’ Racial discrimination is prohibited in various other global and regional human rights instruments.[1] There is only one human race.[2] The term race as used in international instruments should be seen in the context of theories of ‘racial superiority’ based on physical differences such as colourof the skin. As set out in the Durban Declaration and Programme of Action such theories are ‘scientifically false, morally condemnable, socially unjust and dangerous’.[3] Race as understood in international law covers a wide range of characteristics arising from biological, cultural and historical factors including national or ethnic origin and consequently linguistic, cultural and historical differences.[4] (See also *discrimination based on birth, descent or social origin*; *discrimination based on citizenship or residence status*).
Not every differential treatment based, inter alia, on race, colour, descent, or national or ethnic origin constitutes 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. Differential treatment on the ground of race, colour, descent, or national or ethnic origin requiresweighty reasons in order not to constitute discrimination. The ECtHR has held that ‘no difference in treatment which is based exclusively or to a decisive extent on a person's ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures … That being said, [the prohibition of racial discrimination] does not prohibit Contracting Parties from treating groups differently in order to correct “factual inequalities” between them.’[5] it has also been held that ‘discrimination based on race could, in certain circumstances, of itself amount to degrading treatment.’[6] Over-representation of certain groups among persons in prison, as well as lower scores with regard to development indicators, may indicate underlying racist and discriminatory practices in society, in particular lack of opportunities, as well as inequality before the law.[7] (See *equal treatment before the law*). Differences of treatment which have been deemed to be unreasonable or for illegitimate purposes, and therefore amount to discrimination, include racial segregation and apartheid,[8] and denial of accessto ‘any place or service intended for use by the general public, such as transport, hotels, restaurants, cafés, theatres and parks.’[9] The CESCR Committee has expressed its concern about ‘the over-representation of Roma children in so-called "special schools" which are primarily designed for mentally retarded children, resulting in discrimination, substandard education and stigma of mental disability’.[10] See also *discrimination based on birth, descent or social origin*. Positive steps to increase integration should not be rescinded. In LR v Slovakia, the CERD Committee held that the decision by local authorities to revoke an earlier decision to build low-cost housing for Roma inhabitants following a petition by other inhabitants constituted discrimination in violation of CERD.[11] States have an obligation to criminalize discrimination based on race, colour, national or ethnic origin and to investigate any incidents and prosecute those responsible.[12] States also have an obligation under CERD to declare illegal and prohibit organisations which promote or incite racial discrimination and criminally sanction membership in such groups.[13] (See *incitement to violence, hatred or discrimination*). Racial profiling, ‘the practice of police and other law enforcement officers relying, to any degree, on race, colour, descent or national or ethnic origin as the basis for subjecting persons to investigatory activities or for determining whether an individual is engaged in criminal activity’ constitutes discrimination based on race or colour.[14] In Williams Lecraft v Spain, a woman was stopped by a police officer who requested to see her identity card. When she asked why, the police officer answered that the Interior Ministry had requested the police to carry out identity checks of ‘coloured’ persons because of the high number of illegal immigrants in Spain. The HRC held that Spain had violated the prohibition of discrimination in article 26 of the ICCPR.[15] Among the particularly vulnerable groups that can be subject to racial or ethnic discrimination are minorities, migrants, indigenous peoples, victims of trafficking, and refugees. Additional references S Fredman (ed) Discrimination and human rights – The case of racism (2001) W Kälin & J Künzli The law of international human rights protection (2009) M Sepúlveda et al Universal and regional human rights protection – Cases and commentaries (2004) O de Schutter International human rights law (2010) 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)
[1]UDHR art 2; ICESCR art 2; ICCPR arts 2, 26; CRC art 2(1); ACHPR art 2; ACRWC art 3; ACHR art 1, ACHR Protocol on ESCR art 3; ECHR art 14. [2]Durban World Conference against Racism Declaration paras 6, 7. [3] Durban World Conference against Racism Declaration para 7. [4] Sejdić and Finci v Bosnia and Herzegovinaapplications 27996/06 and 34836/06 (ECtHR (GC) 2009) para 43. Whether a person belongs to an ethnic group is dependent on self-identification, ‘if no justification exists to the contrary’. See CERD General Recommendation VIII. UDHR, ICESCR, ICCPR and ACHR refer to race, colour and national origin, but not ethnic origin. ECHR art 14 similarly does not refer to ethnic origin, but includes discrimination based on ‘association with a national minority’. [5] Sejdić and Finci v Bosnia and Herzegovina para 44. [6]East African Asians v the United Kingdomapplication 4403/70 et al (ECmHR 1970). See also Moldovan and Others v Romania (No 2)applications 41138/98 and 64320/01(ECtHR 2005) para 111. [7]Durban World Conference against Racism Declaration para 25, 31; CERD General Recommendation XXXI para 1. [8]CERD art 3. [9]CERD art 5(f). See also Lacko v Slovakia communication 11/98 (CERD 2001). [10]Concluding Observations: Czech Republic, E/C.12/1/ADD.76 (CESCR, 2002) para 23. See also DH and Others v Czech Republic application 57325/00 (ECtHR (GC) 2007). [11]LR v Slovakia communication 31/2003 (CERD 2005) paras 2.1-2.3, 10.7. [12] Concluding Observations: Poland, CERD/C/POL/CO/19 (CERD, 2009), para 9. [13]CERD art 4. [14]Durban World Conference against Racism Programme of Action para 72. [15]Williams Lecraft v Spain, communication 1493/2006 (HRC 2009) para 7.2.
Condensed:
Racial distinctions are deemed to be inherently suspect and weighty reasons, such as correcting factual inequalities, are required to justify differential treatment.Race in international law can cover a wide range of characteristics arising from biological, cultural and historical factors as it can include national or ethnic origin and consequently linguistic, cultural and historical differences.
Discrimination can include racial segregation and apartheid, and denial of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafés, theatres and parks. States have an obligation to criminalize discrimination based on race, colour, national or ethnic origin and to investigate any incidents and prosecute those responsible. Racial profiling, the practice of police and other law enforcement officers relying on race, colour, descent or national or ethnic origin as the basis for subjecting persons to investigatory activities or for determining whether an individual is engaged in criminal activity, constitutes racial discrimination.
Comprehensive:
Article 1(1) of CERD defines ‘racial discrimination’ as ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural and other field of public life.’ Racial discrimination is prohibited in various other global and regional human rights instruments.[1]
There is only one human race.[2] The term race as used in international instruments should be seen in the context of theories of ‘racial superiority’ based on physical differences such as colourof the skin. As set out in the
Durban Declaration and Programme of Action such theories are ‘scientifically false, morally condemnable, socially unjust and dangerous’.[3] Race as understood in international law covers a wide range of characteristics arising from biological, cultural and historical factors including national or ethnic origin and consequently linguistic, cultural and historical differences.[4] (See also *discrimination based on birth, descent or social origin*; *discrimination based on citizenship or residence status*).
Not every differential treatment based, inter alia, on race, colour, descent, or national or ethnic origin constitutes 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. Differential treatment on the ground of race, colour, descent, or national or ethnic origin requires weighty reasons in order not to constitute discrimination. The ECtHR has held that ‘no difference in treatment which is based exclusively or to a decisive extent on a person's ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures … That being said, [the prohibition of racial discrimination] does not prohibit Contracting Parties from treating groups differently in order to correct “factual inequalities” between them.’[5] it has also been held that ‘discrimination based on race could, in certain circumstances, of itself amount to degrading treatment.’[6]
Over-representation of certain groups among persons in prison, as well as lower scores with regard to development indicators, may indicate underlying racist and discriminatory practices in society, in particular lack of opportunities, as well as inequality before the law.[7] (See *equal treatment before the law*).
Differences of treatment which have been deemed to be unreasonable or for illegitimate purposes, and therefore amount to discrimination, include racial segregation and apartheid,[8] and denial of access to ‘any place or service intended for use by the general public, such as transport, hotels, restaurants, cafés, theatres and parks.’[9] The CESCR Committee has expressed its concern about ‘the over-representation of Roma children in so-called "special schools" which are primarily designed for mentally retarded children, resulting in discrimination, substandard education and stigma of mental disability’.[10] See also *discrimination based on birth, descent or social origin*.
Positive steps to increase integration should not be rescinded. In LR v Slovakia, the CERD Committee held that the decision by local authorities to revoke an earlier decision to build low-cost housing for Roma inhabitants following a petition by other inhabitants constituted discrimination in violation of CERD.[11]
States have an obligation to criminalize discrimination based on race, colour, national or ethnic origin and to investigate any incidents and prosecute those responsible.[12] States also have an obligation under CERD to declare illegal and prohibit organisations which promote or incite racial discrimination and criminally sanction membership in such groups.[13] (See *incitement to violence, hatred or discrimination*).
Racial profiling, ‘the practice of police and other law enforcement officers relying, to any degree, on race, colour, descent or national or ethnic origin as the basis for subjecting persons to investigatory activities or for determining whether an individual is engaged in criminal activity’ constitutes discrimination based on race or colour.[14] In Williams Lecraft v Spain, a woman was stopped by a police officer who requested to see her identity card. When she asked why, the police officer answered that the Interior Ministry had requested the police to carry out identity checks of ‘coloured’ persons because of the high number of illegal immigrants in Spain. The HRC held that Spain had violated the prohibition of discrimination in article 26 of the ICCPR.[15]
Among the particularly vulnerable groups that can be subject to racial or ethnic discrimination are minorities, migrants, indigenous peoples, victims of trafficking, and refugees.
Additional references
S Fredman (ed) Discrimination and human rights – The case of racism (2001)
W Kälin & J Künzli The law of international human rights protection (2009)
M Sepúlveda et al Universal and regional human rights protection – Cases and commentaries (2004)
O de Schutter International human rights law (2010)
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)
[1]UDHR art 2; ICESCR art 2; ICCPR arts 2, 26; CRC art 2(1); ACHPR art 2; ACRWC art 3; ACHR art 1, ACHR Protocol on ESCR art 3; ECHR art 14.
[2] Durban World Conference against Racism Declaration paras 6, 7.
[3] Durban World Conference against Racism Declaration para 7.
[4] Sejdić and Finci v Bosnia and Herzegovinaapplications 27996/06 and 34836/06 (ECtHR (GC) 2009) para 43. Whether a person belongs to an ethnic group is dependent on self-identification, ‘if no justification exists to the contrary’. See CERD General Recommendation VIII. UDHR, ICESCR, ICCPR and ACHR refer to race, colour and national origin, but not ethnic origin. ECHR art 14 similarly does not refer to ethnic origin, but includes discrimination based on ‘association with a national minority’.
[5] Sejdić and Finci v Bosnia and Herzegovina para 44.
[6]East African Asians v the United Kingdomapplication 4403/70 et al (ECmHR 1970). See also Moldovan and Others v Romania (No 2)applications 41138/98 and 64320/01(ECtHR 2005) para 111.
[7] Durban World Conference against Racism Declaration para 25, 31; CERD General Recommendation XXXI para 1.
[8]CERD art 3.
[9]CERD art 5(f). See also Lacko v Slovakia communication 11/98 (CERD 2001).
[10]Concluding Observations: Czech Republic, E/C.12/1/ADD.76 (CESCR, 2002) para 23. See also DH and Others v Czech Republic application 57325/00 (ECtHR (GC) 2007).
[11] LR v Slovakia communication 31/2003 (CERD 2005) paras 2.1-2.3, 10.7.
[12] Concluding Observations: Poland, CERD/C/POL/CO/19 (CERD, 2009), para 9.
[13]CERD art 4.
[14] Durban World Conference against Racism Programme of Action para 72.
[15]Williams Lecraft v Spain, communication 1493/2006 (HRC 2009) para 7.2.