UN Treaty Body Expands Definition of Discrimination to Invent Human Rights
HUMAN RIGHTS, LAW & JUSTICE, SOCIETY & CULTURE
Tuesday, September 1, 2009
On June 10, the UN Committee responsible for interpreting and implementing the International Covenant on Economic, Social and Cultural Rights (the “Covenant”) issued General Comment No. 20 discussing “Non-Discrimination in Economic, Social and Cultural Rights.” The General Comment significantly broadens the definition of discrimination beyond what is contained in the Covenant and provides a platform for the Committee to challenge the social and economic policies of democratic nations.
The Committee on Economic, Social and Cultural Rights (the “Committee”) consists of 18 “experts” who meet twice a year to review periodic reports submitted by States party to the Covenant. In essence, the Committee analyzes whether nations are adhering to the terms of the Covenant in regards to ensuring economic, social, and cultural rights. Unfortunately, through its General Comments, the Committee often defines these ambiguous rights in an extensive manner that was not contemplated at the time of the Covenant’s adoption.
General Comment No. 20 focuses on article 2, paragraph 2 of the Covenant, which states that parties to the Covenant must guarantee the rights contained in the treaty “without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Of course, to facilitate the Committee’s global governance of domestic economic, social, and cultural policies, the General Comment specifies the “prohibited grounds of discrimination” contained in the Covenant.
In its interpretation of the article, the Committee expands the definition of some of the “express grounds” of discrimination highlighted in the Covenant. For example, the General Comment states that discrimination in regards to “sex” includes not only preferential treatment according to biological differences, but also includes any discrimination based on gender stereotypes that create “obstacles to the equal fulfillment of economic, social and cultural rights.” In another case, in regards to “language” discrimination, the Committee recommends that States make public services and goods available in all minority languages so as not to create de facto discrimination on the basis of national or ethnic origin.
Perhaps more worrisome, however, is the Committee’s focus on discrimination regarding “other status.” A significant portion of the General Comment is spent interpreting these vague grounds of discrimination, which the Committee claims “evolve” over time. According to the General Comment, “other status” includes a plethora of protections and rights not expressly contained in the Covenant, including allowing adolescents access to sexual and reproductive health information and services (prohibition of discrimination on the basis of age); guaranteeing Covenant rights such as education, food, and affordable health care to “undocumented” immigrants (prohibition of discrimination on the grounds of nationality); ensuring social benefits and rights to those in relationships “not recognized by the law” (prohibition of discrimination on the basis of marital and family status); guaranteeing that an individual’s “sexual orientation is not a barrier to realizing Covenant rights” (prohibition of discrimination according to sexual orientation and gender identity); ensuring health insurance regardless of an individual’s overall state of health (prohibition of discrimination on the grounds of health status); and reducing “disparities between localities and regions” by providing an equal distribution of quality health care facilities throughout the State (prohibition of discrimination on the basis of place of residence).
Through its expansive definition of discrimination, the Committee is over-reaching by inferring rights that are not obviously present in the Covenant. Because the Committee often uses its General Comments as a means of measuring the extent to which States parties have implemented the treaty, it is effectively engaging in the global governance of economic, social, and cultural rights and usurping the sovereign authority of States to decide these issues domestically through democratic decision-making processes.
Jim Kelly is the President of Solidarity Center for Law and Justice, P.C., a public interest civil and human rights law firm based in Atlanta, Georgia. The opinions expressed herein are his own.
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