The prohibition against discrimination under international law

Respect for all human beings lies at the heart of international human rights law. International law prohibits intentional discrimination through legal means (de jure), but it also prohibits discrimination in the form of disparate impact (de facto). Discrimination is both a stand-alone prohibition (e.g., a government may not pass laws segregating citizens by race) and a procedural prohibition that exists in conjunction with other rights (e.g., a government may not implement the right to vote for only those of a specified race). Multiple documents include a long, non-exclusive list of those against whom discrimination is prohibited, building from the Universal Declaration of Human Rights, which reads:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

The UDHR’s list was created in 1948, and therefore reflects the discrimination of particular concern at that time. The drafters intentionally made the list non-exclusive in order to allow for the future inclusion of additional groups. In recent years, one example of that inclusion is the prohibition of discrimination on the basis of sexual orientation or gender identity.

In addition to the historical and political significance of prohibition against discrimination articulated by the UDHR, there are legally binding prohibitions against discrimination in both the International Covenant of Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Moreover, there are treaties which elaborate on the rights of particular groups, including the Convention on the Elimination of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of Persons with Disabilities (CRPD).

Some of the most important international laws prohibiting discrimination include those listed below. This list includes both hard (binding) law and soft (persuasive) law. An asterisk appears for the treaties the United States has ratified, and which it is therefore legally bound to respect, protect, and fulfill.

Primary human rights treaties prohibiting discrimination:

• International Covenant on Civil and Political Rights (ICCPR)* 

  • Article 2 (autonomous right on the prohibition against discrimination)

  • Article 26 (non-discrimination required for implementing the rights under the Covenant)

  • General Comment 23 (Article 27 on the rights of minorities)

  • General Comment 18 (Non-discrimination)

  • General comment No. 11:  Article 20 (Prohibition of propaganda for war and inciting national, racial or religious hatred)

• International Covenant on Economic, Social and Cultural Rights (ICESCR)

  • Article 2.2 (non-discrimination)

  • General Comment No. 20: Non-discrimination in economic, social and cultural rights 

• International Convention on the Elimination of Racial Discrimination (ICERD)*

  • Article 1 (defining “racial discrimination”)

• Convention on the Elimination of All Forms of Discrimination against Women  (CEDAW)

  • Article 1 (defining “discrimination against women”)

• Convention on the Rights of the Child (CRC)

  • Article 2 (non-discrimination)

• Convention on the Rights of Persons with Disabilities (CRPD)

  • Article 5 (Equality and non-discrimination)

  • General comment No. 1: Article 12: Equal recognition before the law

• International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

  • Article 7 (Non-discrimination with respect to rights)

Administration of justice

• Manual on human rights in the administration of justice (U.N. Office of the High Commissioner for Human Rights): Chapter 13 on right to equality and non-discrimination in the administration of justice

• International Covenant on Civil and Political Rights, Article 14 (Equality before courts and tribunals and to fair trial

  • General Comment No. 32: Article 14: Right to Equality before Courts and Tribunals and to Fair Trial

  • General comment 13:  Article 14 (Administration of justice)

• Convention on the Rights of the Child (CRC) 

  • General Comment No. 10 (2007):Children’s rights in juvenile justice

• Convention on the Rights of Persons with Disabilities (CRPD): Article 12 (Equality before the law)

  • General Comment 1

Equality between women and men

• Convention on the Elimination of All Forms of Discrimination against Women  (CEDAW)

  • Article 1 (defining “discrimination against women”)

• International Covenant on Civil and Political Rights (ICCPR)

  • Article 3 (The equality of rights between men and women)

  • General Comment No. 28 (on Article 3)

• International Covenant on Economic, Social and Cultural Rights (ICESCR)

  • General comment No. 16: The equal right of men and women to the enjoyment of all economic, social and cultural rights (art. 3 of the International Covenant on Economic, Social and Cultural Rights)

Immigrant rights and non-discrimination

• International Covenant on Civil and Political Rights (ICCPR)

  • General comment 15:  The position of aliens under the Covenant

• Convention on the Rights of the Child (CRC)

  • General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin 

Indigenous rights and non-discrimination

• Convention on the Rights of the Child (CRC)

  • General Comments No. 11 (2009) Indigenous children and their rights under the Convention