1.1.3. European non-discrimination law and UN human rights treaties

Handbook on European non-discrimination lawContents

Key points

Naturally, human rights protection mechanisms are not limited to Europe. As well as other regional mechanisms in the Americas, Africa and the Middle East, the United Nations (UN) created a significant body of international human rights law. All EU Member States are party to the following UN human rights treaties, all of which contain a prohibition on discrimination: the International Covenant on Civil and Political Rights (ICCPR),[30] the International Covenant on Economic Social and Cultural Rights (ICESCR),[31] the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),[32] the Convention on the Elimination of Discrimination Against Women (CEDAW),[33] the Convention Against Torture,[34] and the Convention on the Rights of the Child (CRC).[35] All these human rights treaties recognise protection against discrimination in the provision, protection and promotion of rights. EU legislation, including the equality directives, refers to various international agreements, including the United Nations Convention on the Elimination of All Forms of Discrimination against Women, United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and the International Convention on the Elimination of all Forms of Racial Discrimination.[36] References to UN treaties can also be found in the jurisprudence of the ECtHR. The ECtHR emphasised that the ECHR cannot be interpreted in a vacuum, but must be interpreted in harmony with the general principles of international law. One should take into account any relevant rules of international law applicable in the relations between the parties, in particular the rules concerning the international protection of human rights.[37]

Traditionally, only states can become members of human rights treaties. However, as states cooperate more through international organisations – to which they delegate significant powers and responsibilities – there is a pressing need to make sure that these organisations also commit themselves to give effect to the human rights obligations of their member states. The 2006 Convention on the Rights of Persons with Disabilities (CRPD) [38] is the first UN-level human rights treaty that is open to membership by regional integration organisations, and which the EU ratified in December 2010.[39] In 2015, the Committee on the Rights of Persons with Disabilities conducted its first review to determine how the EU has implemented its obligations.[40] In its Concluding observations, the Committee expressed its concern that the EU directives, the Racial Equality Directive (2000/43), the Gender Goods and Services Directive (2004/113) and the Gender Equality Directive (recast) (2006/54) failed to explicitly prohibit discrimination on the grounds of disability and to provide reasonable accommodation to persons with disabilities in the areas of social protection, health care, rehabilitation, education and the provision of goods and services, such as housing, transport and insurance.[41] It recommended that the EU extend protection against discrimination to persons with disabilities by adoption of the proposed horizontal directive on equal treatment.[42]

The CRPD contains an extensive list of rights for persons with disabilities, aimed at securing equality in the enjoyment of their rights, as well as imposing a range of obligations on the state to undertake positive measures. According to Article 216 (2) of the TFEU, international agreements concluded by the EU are binding to the Union and the Member States, and are an integral part of Union law. As the EU is party to the CRPD, when applying EU law, EU institutions and Member States have to comply with the convention. In addition, individual Member States have acceded to the CRPD in their own right, which imposes obligations upon them directly. The CRPD became a reference point for interpreting both EU and ECtHR law relating to discrimination on the basis of disability.[43] In 2013, the CJEU applied the definition in accordance with the concept of ‘disability’ used in the United Nations Convention on the Rights of Persons with Disabilities. The CJEU stated that “Directive 2000/78 must, as far as possible, be interpreted in a manner consistent with the Convention.”[44]

On 11 May 2017, the Council of the EU adopted two decisions on the signing of the Istanbul Convention by the EU, covering judicial cooperation in criminal matters and asylum and non-refoulement. The EU Commissioner for Justice, Consumers and Gender Equality, Věra Jourová, signed the Istanbul Convention on behalf of the European Union on 13 June 2017. The decision on signing is the first step in the process of the EU joining the Convention. Following the official signing, accession requires the adoption of the decisions on the conclusion of the Convention. These decisions will need the consent of the European Parliament.

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30. United Nations (UN), General Assembly (GA) (1966), International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, United Nations Treaty Series (UNTS) vol. 999, p. 171.

31. UN, GA (1966), International Covenant on Economic Social and Cultural Rights (ICESCR), 16 December 1966, UNTS vol. 993, p. 3.

32. UN, GA (1966), International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 16 December 1966, UNTS vol. 660, p. 195.

33. UN, GA (1966), Convention on the Elimination of Discrimination Against Women (CEDAW), 18 December 1979, UNTS vol. 1249, p. 13.

34. UN, GA (1984), Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, UNTS vol. 1465, p. 85.

35. UN, GA (1989), Convention on the Rights of the Child (CRC), 20 November 1989, UNTS vol. 1577, p. 3. In addition most of the Member States are also party to the International Convention for the Protection of All Persons from Enforced Disappearance (UN Doc. A/61/488, 20 December 2006); however, none are yet party to the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (UN Doc. A/ RES/45/158, 1 July 2003).

36. For example, see recital 4 of Directive 2000/78, recital 3 of Directive 2000/43.

37. ECtHR, Harroudj v. France, No. 43631/09, 4 October 2012, para. 42. See for example ECtHR, Khamtokhu and Aksenchik v. Russia [GC], Nos. 60367/08 and 961/11, 24 January 2017 referring to the CEDAW; ECtHR, Nachova and Others v. Bulgaria [GC], Nos. 43577/98 and 43579/98, 6 July 2005 referring to the ICERD.

38. UN Doc. A/61/611, 13 December 2006. All Member States except Ireland ratified the CRPD.

39. For the EU the CRPD entered into force on 22 January 2011.

40. UN, Committee on the Rights of Persons with Disabilities (2015), Concluding observations on the initial report of the European Union, CRPD/C/EU/CO/1, 2 October 2015.

41. Ibid., para. 18.

42. Ibid., para. 19.

43. CJEU, C-312/11, European Commission v. Italian Republic, 4 July 2013; CJEU, C-363/12, Z. v. A Government department and The Board of Management of a Community School [GC], 18 March 2014; CJEU, C-356/12, Wolfgang Glatzel v. Freistaat Bayern, 22 May 2014; CJEU, C-395/15, Mohamed Daouidi v. Bootes Plus SL and Others, 1 December 2016; CJEU, C-406/15, Petya Milkova v. Izpalnitelen direktor na Agentsiata za privatizatsia i sledprivatizatsionen kontrol, 9 March 2017.

44. CJEU, Joined cases C-335/11 and C-33711, HK Danmark, acting on behalf of Jette Ring v. Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Lone Skouboe Werge v. Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S, 11 April 2013.

Contents

1. Introduction to European non-discrimination law: context, evolution and key principles

1.1. Context and background to European non-discrimination law

1.1.2. European Union: development of nondiscrimination law

1.1.3. European non-discrimination law and UN human rights treaties

1.2. Who receives protection under European non-discrimination law?

1.3. Scope of the ECHR: Article 14 and Protocol No. 12

1.4. Scope of EU non-discrimination law

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